Probate refers to the legal administrative process to wrap up the estate of a deceased loved one. Estate litigation is the process of resolving problems and disputes which arise when someone is administering the estate of a deceased loved one.
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Probate & Estate Litigation
As a full-service law firm, Cunningham & Co. is willing to walk with you through all of life’s key events. Unfortunately, once a loved one has passed, the administrative work is often the last thing on one’s mind. Our firm seeks to make the process seamless.
What is Probate?
Probate refers to the legal administrative process to wrap up the estate of a deceased loved one. Probate is required in most circumstances by financial institutions, such as banks, so that accounts can be closed up and assets can be distributed. As well, if your loved one owned property before their passing, you may need the grant of probate to distribute the property according to the will.
If your loved one passed without a will, you will need to apply for a grant of administration.
While it is possible for you to file for probate on your own, it is often advisable to have a lawyer help you file given the legal complexities involved. You can contact Cunningham & Co. if you would like legal representation to file for probate or a grant of administration.
What is Estate Litigation
Estate litigation is the process of resolving problems and disputes which arise when someone is administering the estate of a deceased loved one.
Common Situations That May Lead to Estate Litigation
Problems can arise with the administration of the estate after your loved one has passed. Failing to administer an estate properly can lead to situations which are heartbreaking and frustrating, including:
- Delay in filing probate, leading to assets not being distributed and possibly diminishing in value;
- Misappropriation of estate assets;
- Executor failing to follow the terms of the will;
- Failing to disclose the accounting of the estate; and
- You were left out of the will unfairly and want to file a wills variance claim.
Best Practices for Managing Estate Litigation
If you believe you may have an estate litigation case, then here are some best practices that you should be aware of:
- Keep copies of your records and communications
- If you think an executor is acting improperly, contact a lawyer promptly. Do not wait until it gets worse as assets may be redistributed making them more difficult to retrieve.
- Make a paper trail of your concerns. Ensure that your concerns are brought up to the executor or the executor’ representative. A lawyer can help you draft letters or communication which will bring these concerns to light.
Legal Remedies Available for Estate Litigation
Navigating the administration of the estate can be confusing. There are several court mechanisms that can protect your interests as a beneficiary under the will. You can file for a notice of dispute if you have any concerns about the validity of the will. There are also various orders that can be sought if there are concerns about the administration of the estate – including an order for accounting, tracing, or the removal and replacement of an executor.
If you are a spouse (including common-law spouse) or child of the deceased, you may be able to vary the will if you were left out of the will.
Court is not the only option, but disputes can be mediated or negotiated.
It is important to discuss your specific situation with a lawyer who is able to help you determine the appropriate remedy.
Most Estate Litigation cases in British Columbia are resolved through negotiation or settlement, often before formal court proceedings are started.
When to Hire an Estate Lawyer
It is recommended to speak to a litigation lawyer to increase your chances of success and to protect your rights. Often times, there a strict deadlines to file your dispute before the limitation period passes.
At Cunningham & Co., we assist clients with assessing what are the appropriate next steps, evaluating potential risks to your legal entitlements, and determining whether further action is in your best interests. We can help negotiate, draft and respond to applications and where necessary, represent clients at court.
