While probate is generally a straightforward legal process that involves settling the estate of a decedent, the process can become adversarial. The parties involved in a probate proceeding can be a variety of family members. Not all family members have the same interests. In fact, there may be acrimonious relationships among family members and as a result, their interests may be conflicting leading to contentious moments in the process and sometimes to litigation. Even in the absence of challenging family dynamics, issues may come up during the process that may require court intervention to resolve.
A will contest is an objection to the validity of a will. The goal of the contestant is to prevent the will from being probated. A will contest can only be initiated by those who have legal standing such as beneficiaries named in the contested will, beneficiaries named in a prior or later will, or an heir. The objection must be submitted in writing and it must include valid reasons for the objection. A will contest can be initiated before or after the will has been admitted to probate.
Grounds for a will contest include mental incapacity, undue influence, improper execution, duress, and revocation. If a will contest is successful, the court will not probate that will. Instead, it will either probate another will that is determined to be valid, or the decedent will be declared intestate. If that happens, Nevada’s intestate succession statute will apply.
Breach of Fiduciary Duty
Probate disputes can center on the personal representative. The personal representative is a fiduciary. As such, they are required to do their job with the highest degree of care and honesty. Failure to do so can result in removal of the personal representative as well as personal liability. Common reasons for fiduciary litigation include:
- Failure to account: If the personal representative fails to file an accounting when required or when ordered by the court, they would have breached their fiduciary duty.
- Self-dealing: Fiduciaries are required to act in the best interests of the estate and not in their own self-interest. If they take advantage of their position and use their power for personal profit, they can be charged with unauthorized self-dealing.
- Violations of rules: The conduct of a personal representative is subject to Nevada law, court rules and procedures, and court orders. Fiduciaries can be considered to have breached their fiduciary duty and be removed for the intentional or unintentional violation of court orders, statutory requirements, or court rules.
- Mismanagement of estate assets: A personal representative is obligated to act prudently in the administration of an estate. Even the unintentional mismanagement of estate assets can be a breach of fiduciary duty.
With respect to an estate or probate proceeding, the personal representative may not be the only fiduciary. Other fiduciaries may include a trustee, guardian, attorney, and accountant. If the fiduciary is found to have breached their duty as a fiduciary, then the District Court may remove them. If their breach resulted in damage to the estate, the fiduciary may be held personally liable.
Disputes With Creditors
Probate litigation can be caused be rejected creditor’s claims. If the personal representative rejects a claim filed by a creditor, the claimant can pursue the matter by filing a lawsuit in court.
Depending on the size of the estate, in Nevada creditors are required to file claims against an estate within 90 days (or 30 days in some instances) of when the notice to creditors was published or mailed. Within 15 days after the time for filing claims has expired, the personal representative must either allow or reject a claim and file the notice of allowance with the Clerk of the Court. NRS § 147:110
If a claim is rejected the claimant, the personal representative must immediately notify the claimant. Within 60 days of the notice, the claimant can file a lawsuit against the personal representative. Or, the claimant can file a timely petition for summary determination. Otherwise, the claim will be forever barred.