Probate Disputes

Probate and estate administration are the legal processes that an estate must go through before a decedent’s property can be passed on to others. While the proceeding is primarily administrative in nature, it can also be contentious. There are many people involved such as beneficiaries, heirs, other family members, creditors, and fiduciaries. These parties may have distinct, sometimes opposing interests. Couple the conflicting interests with a range of emotions associated with settling the estate of a deceased loved one, it is not surprising that the process can become combative at times, resulting in litigation. Disputes frequently occur between beneficiaries or heirs regarding the authenticity of the will, between the fiduciary and beneficiaries over the fiduciary’s actions, and between beneficiaries and the spouse’s elective share. A probate dispute can greatly impact the administration process, causing significant delays in the process and increasing the administration expenses.

Will Contest

A will contest is an objection to the validity of a will. In other words, if someone does not want a will to be probated, they can file a formal objection to it. Only beneficiaries, beneficiaries to a prior will, heirs, and in some instances, creditors have the legal standing to file a will contest. Legal grounds for will contests include:

• Lack of testamentary capacity. Testamentary capacity refers to both the age of the testator and their mental state. The testator must have been adult—at least 18. The testator must not have been suffering from a condition such that their mental capacity was compromised to the extent that they did not understand the impact of making a will. Neb. Rev. Stat. § 30-2326
• Undue influence. If someone takes advantage of a vulnerable person and manipulates them into including certain terms in their will, the will would not be valid. Undue influence is more than simple influence. While it is acceptable to ask someone to be included in their will, it is not acceptable and is in fact illegal to manipulate someone who is in a weakened position to make a will that does not represent their own wishes, but represents the wishes of the manipulator.
• Improper execution. A will can be contested if it was not properly executed. With few exceptions, under Nebraska law a will must be written. The testator must sign it and it must be signed by at least two individuals each of whom witnessed either the signing or the testator’s acknowledgment of the signature on the will. Neb. Rev. Stat. § 30-2327

If a will contest is not successful and the court finds that the will is valid, then the matter will proceed based on the will that was submitted. If the person contesting the will wins, the court will throw out the submitted will and proceed without it. Unless there is another will that is found to be valid, the decedent would be intestate and Nebraska’s intestate succession law would apply to asset distribution.

Breach of Fiduciary Duty

The personal representative is held to a high standard with respect to how they fulfill their duties and responsibilities. If they are negligent or dishonest, or it they put their own interests ahead of the interests of the estate, they would have violated their fiduciary duty. As a result, a beneficiary, heir, or other interested party can initiate a lawsuit in the County Court.

Common reasons for fiduciary litigation include mismanagement of estate assets, failure to follow the instructions in the will, or questions related to the accounting. The consequences of a fiduciary being found to have breached their duty can include removal, financial liability, and loss of fee.

Elective Share Disputes

An elective share is a portion of a decedent’s estate that the spouse of a decedent is entitled to regardless of what the will provides. The purpose of the elective share requirement is to prevent a spouse from being disinherited. The spouse has the choice of accepting whatever was provided for them in the will or electing to instead take the statutory share. However, there is a specific time frame that the spouse must make the election and a specific manner of making the election. The amount of the elective share is up to 1/2 of the decedent’s augmented estate. Neb. Rev. Stat. § 30-2317. A dispute can develop if there is a disagreement over the amount of the elective share or whether the spouse properly made the election.