Probate and Inheritance Consultation: Protecting Your Share of the Estate

Probating a will requires submitting the original instrument to the probate court with a petition identifying the decedent, the named executor, and the beneficiaries, and the court admits the will if it meets the state's formal execution requirements. Probate counsel must prepare a complete inventory of the estate's assets and liabilities before the first court hearing, since the personal representative's credibility with the court depends on presenting an accurate and comprehensive accounting from the outset of the administration.

When a decedent dies intestate, the probate court determines the legal heirs under the applicable state's succession statute, which typically prioritizes the surviving spouse and children, then the decedent's parents, then more distant relatives. Heirship claim counsel representing an heir who learned of the decedent's death after the probate proceeding was initiated must file a timely objection to the administrator's preliminary heir determination and present evidence establishing the claimant's relationship within the court's deadline.

In most states, a beneficiary does not inherit a decedent's personal debts, but the estate itself remains liable and those debts must be paid before any lawful distribution to beneficiaries. Inheritance disclaimer counsel must advise a beneficiary who believes the estate is insolvent whether a qualified disclaimer is preferable to accepting assets that may later be subject to a creditor's clawback claim.

A beneficiary who provided exceptional care to the decedent or managed estate property may be entitled to a contribution credit that increases their share, while a beneficiary who received a significant inter vivos gift may have that gift treated as an advancement under the hotchpot doctrine. Inheritance dispute counsel must gather all gift records, including gift tax returns, bank records, and property transfer documents, since establishing whether a pre-death transfer constitutes an advancement requires contemporaneous evidence of the decedent's intent.

A will contest based on lack of testamentary capacity requires evidence from the decedent's medical records and treating physicians that the decedent did not understand the nature and extent of their property, did not know the natural objects of their bounty, or could not comprehend the legal effect of the document they were signing. Will contests counsel must obtain the complete medical record from the period of the will's execution and retain a geriatric psychiatrist to provide a retrospective capacity assessment, since the burden shifts to the contestant to establish incapacity or undue influence by clear and convincing evidence.

A personal representative who fails to inventory assets accurately, makes preferential distributions, invests estate funds imprudently, or misappropriates estate property may be removed and surcharged for the resulting loss to the estate. Inheritance litigation counsel must file a petition for removal supported by an accounting identifying specific instances of mismanagement or self-dealing, and must simultaneously seek a court order freezing estate accounts to prevent further dissipation.

The taxable estate is reduced by the marital deduction for assets passing to a surviving spouse, the charitable deduction for qualifying charitable transfers, and the deductible debts and administration expenses of the estate. Estate tax counsel must obtain qualified appraisals of all non-liquid assets including real property, closely held business interests, and collectibles, since the IRS scrutinizes these valuations and an unsupported low valuation will be challenged on audit.

After all debts, taxes, and administration expenses are paid, the personal representative prepares a final accounting identifying all receipts, disbursements, and proposed distributions for each beneficiary, and this accounting must be approved by the probate court before the final distribution is authorized. Probate after death counsel must obtain each beneficiary's receipt and release after the distribution and file all required closing documents with the probate court, since a personal representative who distributes without releases remains potentially liable to beneficiaries who later claim they received less than their entitled share.