Why Your Estate Might Be Subject to Probate Litigation

When someone dies in Tennessee, their assets and obligations are typically handled in one of two ways. If the decedent prepared a valid will, then the terms and provisions of the will control who will handle the estate and what cash or property the beneficiaries will get. If the person who died did not leave a will, then the intestate laws of testate control the distribution. In most cases, the spouse and children will get their share of the assets after the debts of the decedent and the taxes are paid.

Probate is essentially the legal process that decides if the will is valid, who should be appointed the personal representative of the decedent’s Estate, and how the assets will be collected and distributed. Some of the types of disputes that arise during the probate process are:

• Someone thinks they should have been named a beneficiary
• Someone is named a beneficiary who normally wouldn’t be expected to get assets – such as a distant relative or someone who wasn’t a relative.
• Children may contest who should be appointed the personal representative
• Questions can arise about the rights of adoptees and step-children
• Issues of who cared for the decedent in his/her last days or months can create conflict

There are rules and requirements for probate litigation that an experienced Chattanooga lawyer understands. There are time limits for bringing claims. The rights of debtors must be respected. A will may have a forfeiture clause that says anyone who brings a probate litigation claim will forfeit their rights under the will.

Why a will may be invalidated

Many probate litigation contests center around the validity of the decedent’s will. The grounds for invalidating a will in Tennessee include:

• The will wasn’t executed properly. Wills must be signed and witnessed according to the Tennessee Execution of Wills Act.
• The decedent revoked the will. Wills can be revoked by the creation and execution of a later will, by a document which revokes the prior will, or by a destructive act such as burning or shredding the will.
• A lack of testamentary capacity. Tennessee requires that the person who prepares a will be 18-years-of-age and have the mental capacity to make a will. Mental capacity requires that the testator (the person making the will)
  • Understand that they are creating a will
  • Understands the assets and property they have
  • Understands the identity of the people who are the natural beneficiaries
• A lack of testamentary intent. The testator didn’t intend for the document to be his/her last will
• Undue influence. Often a dishonest relative will take advantage of the decedent to force the decedent to write a will that benefits the unscrupulous relative. Undue influence can be shown:
  • If the person accused of undue influence had a confidential relationship (such as a caretaker) with the decedent
  • The will distributes property in a way or ways that wouldn’t normally be expected
  • The decedent was in ill or frail health
  • The influencer prevented others from communicating with the decedent

Fraud is another ground for denying or invalidating a will. If the testator was misled about his/her assets, the tax advantages of a will, or is misled to believe they are signing a different type of document; then the will may be suspect.

At Wagner & Wagner Attorneys at Law, we help guide you through these difficult times. Our probate litigation lawyers understand that your first priority is mourning the loss of your loved one. Our attorneys also understand how important it is for you to respect the true wishes of a father, mother, child, relative, or friend. We represent clients in Chattanooga, Cleveland, and nearby Tennessee locations. To understand your rights, please phone us at 423-756-7923 or fill out our contact form . We’re ready to help you honor your loved one and protect your rights.

Related Articles

• How to Avoid Probate Problems
• Do I Have to File for Probate?