Common Misconceptions in Probate Litigation and How to Avoid Them
Guess what? Probate litigation isn’t what you think.
People have some really inaccurate beliefs about probate.
They assume it will drain their estate or drag on for decades.
Here’s the problem…
Because of these myths, people make the kinds of decisions that set them up for a disaster.
Only 65% of Americans understand the probate process, while 35% of Americans either have no idea what probate is or have a completely different idea.
People make decisions without all the facts and end up with a family feud. A multi-year, multimillion-dollar lawsuit that could have been avoided.
The truth is much different than what most people believe.
This guide shows you exactly how to avoid the kinds of mistakes that trip up so many families.
Let’s get started!
You’ll learn
- The Real Truth About Probate Timelines
- Why Most Estates Don’t Get Drained by Costs
- Common Litigation Triggers You Can Prevent
- Smart Strategies to Protect Your Family
The Real Truth About Probate Timelines
How long do you think probate takes?
Think it takes years?
Hold onto your hats.
Here’s what most people believe: Probate will keep your estate tied up for years if not decades. Your family won’t see a dime for years.
But here’s the reality…
Probate litigation cases in typical estates are usually finalized within 5 months to 1 year. Contested probate cases only increased to 122 in 2023, an increase from 116 in 2022 – hardly the epidemic people think it is.
These are normal cases, not the ones that turn into decades long probate litigation. Cases that take years tend to have very specific factors:
- Extremely wealthy estates with assets that keep on earning income
- Real property that needs to be liquidated
- Family members contesting over various parts of the estate
- Complex tax issues that need sorting
- No will or a will that is missing or contested
If you have a typical estate and your family gets along, probate isn’t going to be a drawn-out nightmare.
The key is to plan ahead so that your probate case doesn’t have any of the factors that make it drag on.
Why Most Estates Don’t Get Drained by Costs
This is the scariest myth of them all…
The idea that probate is going to suck every dollar out of an estate, leaving nothing for loved ones. But an experienced Florida probate litigator can help you understand the real cost of probate and avoid unnecessary expenses.
The truth?
Probate cases usually aren’t all that expensive. There are going to be costs involved, but they won’t bankrupt the estate.
Here’s what people get wrong:
56% of Americans have no idea what probate costs, even worse 10% believe it will cost them $1,000 or less!
Probate has attorney fees, court costs, and other expenses. But they’re usually a small fraction of the estate’s total value.
Costs get out of control in cases with:
- Litigation between family members
- Complex asset valuations and disputes
- Tax issues and disputes
- Challenges to will’s validity
- Executor misconduct and disputes
Most of these high cost situations can be avoided with proper planning and open communication.
Common Litigation Triggers You Can Prevent
If you want to know what causes most probate litigation, just ask me.
There’s been hundreds of these cases. The same kinds of issues pop up over and over.
The biggest trigger is the absence of any discussion about estate plans at all.
Family members open up the will after someone dies and it’s the first time they’re hearing about certain decisions.
Suddenly, lawsuits are filed left and right.
Here are the most common probate litigation triggers:
Executor Problems
This is a big one. Probate litigation over executor issues accounts for about 31% of disputes.
Executors get named without a full understanding of their role. They mess up, show favoritism, or embezzle from the estate.
The fix? Choose the right executor and make sure they know what they’re getting into.
Unclear Will Language
Ambiguity in a will is like kindling for a family bonfire.
Families fight over what the deceased “really meant” with every vague sentence.
Families tear each other apart over poorly written sentences that could have been so much clearer.
Family Dynamics
Today’s families are more diverse and complex than ever.
Step-parents, blended families, half-siblings, second marriages – the variables are high. These modern family dynamics add extra pressure.
Add money and grief into the mix and small disagreements can turn into full-blown lawsuits.
Unequal Distributions
Nothing stirs up family strife faster than one child getting more than another – especially if there’s no explanation.
The solution?
If you plan to make unequal distributions, discuss your reasoning with your family while you’re still around. Have those hard conversations early.
Smart Strategies to Protect Your Family
Are you ready to bulletproof your estate against litigation?
These 5 strategies are effective because they go after the underlying causes of most probate disputes.
Strategy 1: Have “The Talk”
The vast majority of families never have any discussion of estate plans before someone dies.
Here’s what you should do:
Share your general plan with your family. Outline how your estate will be distributed, who’s the executor, etc. If you’re planning to make unequal distributions, explain why.
Discuss any of your plans or decisions that you think might raise concerns. Have that difficult family meeting early.
Do this and you will prevent more litigation than any other strategy.
Strategy 2: Keep Your Documents Updated
Life is change. Your estate plan should change with it.
Update your will when:
- You get married or divorced
- Children are born or adopted
- Major assets are purchased or sold
- Relationships with family members change
- Your executor is no longer able to serve
Review your entire estate plan every 3-5 years.
Strategy 3: Choose the Right Executor
This may be the most important decision you make for your estate.
Look for someone who:
- Lives close enough to handle logistics
- Gets along with all of your beneficiaries
- Has basic financial and organizational skills
- Can deal with stress and potential conflict
- Will actually do the work (not just take it on out of obligation)
This doesn’t have to be your oldest child. It could be a younger child, a sibling, a niece or nephew, an aunt or uncle.
Choose the person best suited to serve.
Strategy 4: Consider Professional Help
Sometimes families need a neutral third-party executor to keep things on track.
When to use a professional executor:
- Your estate is complex with lots of assets
- Your family has a history of not getting along
- You have a business that needs managing
- You have minor children that need a guardian
Professional executors charge a fee. But they can save you more than they cost by preventing disputes and other problems.
Strategy 5: Use Trusts When Appropriate
Trusts are for more than just the ultra-wealthy.
Trusts can help:
- Avoid probate for certain assets
- Provide for ongoing management for beneficiaries
- Give you more control over distributions
- Reduce opportunities for family disputes
- Keep things private (probate is a public process)
Trusts are more complex and expensive to set up than simple wills. But for many families, they’re worth the cost.
Wrapping It All Together
Probate litigation doesn’t have to be the awful, years-long, million-dollar battles most people imagine.
The truth is:
- Most probate cases resolve within a year
- Probate costs are usually reasonable
- A lot of common probate disputes can be avoided
- Communication is your best protection against family fighting
Key takeaways:
- Talk with your family early and often about your plans
- Keep your documents updated
- Choose your executor with care
- Get professionals involved when you need their help
- Don’t let the most popular myths drive your decisions
Families that end up in expensive, years-long probate battles are the ones that made a series of preventable mistakes. Decisions that could have been avoided.
Mistakes that cost families millions of dollars and relationships with their children, siblings, and other family members.
Don’t let that be your family.
With good planning and realistic expectations, probate can be simple and do its job of taking care of your loved ones.
Don’t wait until it’s too late.
