estate litigation explained

Estate litigation exists when a person dies and a lawsuit needs to be filed on behalf of the decedent or the decedent's heirs. It may or may not involve contesting a Last Will and Testament or a Revocable Trust. Estate litigation may include opening an estate to file a wrongful death lawsuit against a nursing home, airline, automobile driver, railway or any other person or entity responsible for the death of an individual. While estate litigation can also include probate litigation, Last Will and Testament contests and trust litigation, in certain situations there are no heirs, family members or beneficiaries who are at odds over what the decedent did with his or her Last Will and Testament or trust; instead, for example, the estate litigation may be a lawsuit against a life insurance company that is refusing to honor the terms of a $1,000,000 life insurance policy because the insured committed suicide.

a) Power of Attorney – A power of attorney is a document executed by one person (the “principal”) to give another person (the “attorney-in-fact”) the power to act on the principal’s behalf as if he were the principal. The Power of Attorney is a very powerful document and is subject to being abused by the attorney-in-fact, which can lead to litigation.

Did you know that

• An attorney-in-fact can write checks on and withdraw funds from the principal’s bank account?
• An attorney-in-fact can execute deeds transferring title to real property, including homestead property?
• An attorney-in-fact can withdraw all of the funds from a joint account without the joint account holder's consent?
• An attorney-in-fact can change beneficiary designations on life insurance policies?
• A power of attorney is not valid when the principal dies?
• A power of attorney is not valid when the principal has been determined to be incapacitated by a court of competent jurisdiction unless it is a “durable” power of attorney

Powers of Attorney can be challenged on various grounds. The validity of the document itself can be attacked on the basis of improper execution, undue influence, or lack of capacity. If the document itself appears to be valid, the attorney-in-fact can be charged with breach of fiduciary duty or tortious interference with an expectancy, among other causes of action.

b) Homestead/Real Property Disputes – Deeds can be prepared incorrectly or in a manner that does not comply with the intent of the individual transferring the property. Litigation can be used to correct either honest mistakes in execution and conveyance or deliberate fraud.

c) Forged Instruments – Sometimes instruments that leave property to beneficiaries outside of the probate process, like deeds, beneficiary designations, pay-on-death accounts, and joint accounts, have been created improperly through manipulation or outright deceit. Litigation can be used to undo the damage done by someone who is effectively stealing from a person (often an elderly person) or from that person’s intended beneficiaries.


If you are in need of an attorney with estate litigation experience, contact for a free consulation today.


The material on this page represents general legal advice. Since the law is continually changing, some of the provisions contained here may be out of date. It is always best to consult a probate attorney about your legal rights and responsibilities regarding your particular case.