Probate Disputes

In Virginia when someone passes away their affairs must be settled through a legal process referred to as probate or estate administration. The process is managed by a court qualified personal representative and is overseen by the Circuit Court which in Virginia serves as the probate court. VA Code § 64.2-443A. During the process the decedent’s debts are paid and assets distributed to their beneficiaries and heirs. Sometimes disputes develop during the process based on issues such as the validity of the will, actions of the fiduciaries, interpreting terms in the will, and claimant demanding payment. Such disagreements can lead to probate litigation and impact the entire process. While probate litigation is often resolved before by a Circuit Court judge, in Virginia probate disputes are sometimes first brought before the Commissioner of Accounts.

Will Contest

A will contest is a formal challenge to the validity of a will that has been admitted to probate. Generally, Virginia law requires that an objectant file an objection within one year of when the will was filed with the Clerk of the Court. Common reasons for a will contest include lack of testamentary capacity, undue influence, fraud, improper execution, duress, and existence of a newer will.

Note that only interested parties have the legal standing to object to a will. Generally, interested parties are limited to beneficiaries, beneficiaries of a prior will, intestate heirs, and creditors. Martone v. Martone, 509 S.E.2d 302 (Va. 1999)

Fiduciary Litigation

A fiduciary is a person who has a relationship of trust with respect to another person or entity. When it comes a decedent’s estate, fiduciaries can include the personal representative (executor or estate administrator), guardian, trustee, attorney, or accountant. If a dispute develops related to the fiduciary and their actions, it can lead to probate litigation.

Fiduciary disputes can be based on an interested party disagreeing with the appointment of the personal representative or of a guardian, how a fiduciary performed their duties, or how the fiduciary managed estate assets.

Lawsuits to Construe Will

If a will is poorly written, if there have been changes to assets or the family since the will was written, of if there has been a change in the law, terms of the will may be subject to multiple, conflicting interpretations. For example, a will has two clauses leaving the same asset to 2 different beneficiaries. The personal representative and the beneficiaries would need to ask the court to resolve the conflict.

Litigation by Creditors

The personal representative is required to pay the estate’s timely filed valid debts to the extent there are assets in the estate available to pay them. If a claim is rejected, the claimant can file a lawsuit to seek payment.

If there are not sufficient assets in the estate sufficient to pay all claims, the personal representative must follow the statutory order of priority. As a result, some claims will not be paid. If the personal representative does not follow the order of priority, unpaid creditors have the right to sue the personal representative and the personal representative be personally liable.

Impact of Probate Disputes

The impact of probate disputes depends on the type of dispute and the outcome. For example, a successful will contest would mean that the probate is revoked. In the absence of the existence of another will that is valid, the result would be that the decedent’s estate would be subject to Virginia’s law of intestate succession. VA Code § 64.2-200.

If there is a successful creditor lawsuit, the result would be that the creditor is paid and fewer assets would be available to distribute to beneficiaries or heirs. If the creditor lawsuit is against the personal representative personally, then the personal representative would have to pay the claim out of personal assets or their bond would cover the settlement.

Regardless of the outcome of the dispute, if it is a lengthy dispute it will impact the amount of time that it takes to complete the administration process and distribute assets. In Virginia, estate administration typically takes at least 6 months and up to 12 months. Litigation can cause the timeframe to extend well past a year.

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