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The Probate Litigation Process: Here’s What You Need to Know

Thu Jun 30, 2022 | Estate Planning |

When someone dies, their estate must be admitted to probate in order to legally transfer their assets to their heirs. The process is court-supervised and is largely administerial, particularly when the will is clear and the personal representative is conscientious in performing their duties. Along the way, heirs, beneficiaries, and even creditors can raise issues with how the assets of the estate are being distributed. When these issues become disputes that can’t be resolved, probate litigation is the result. 

While the basic probate process can often be handled without an attorney, it is extremely difficult for non-lawyers to successfully litigate a dispute. You will be expected to comply with all court rules and procedures, and even a simple mistake can jeopardize your claim. If you are involved in an estate dispute that cannot be resolved, the best thing to do is contact a Boca Raton estate litigation attorney

Probate Litigation – Is It As Bad As They Say?

There is no denying that litigation is expensive. Litigation can be extremely time-consuming and most litigation attorneys bill on an hourly basis. Complex issues with extremely adversarial parties can be extremely difficult to resolve short of trial. Altogether, litigation can wind up absorbing a great deal of time and money at the estate’s expense. 

That said, litigation is sometimes the best and only option for resolving good faith disputes. Poorly drafted wills, aggressive creditors, or challenging family dynamics often require the intervention of a court. The court’s decision can provide clarity and guidance when the way forward is unclear. 

One of the reasons why litigation can sometimes yield an unfavorable result is that people often confuse when they need to litigate the dispute as opposed to negotiating a reasonable settlement. Fruitlessly pursuing the wrong option will just cost you money. A seasoned Boca Raton estate litigation attorney will be able to determine when you just need to go to trial versus when you should strongly consider settlement. 


In probate litigation, one or more parties may get to decide whether to litigate. In that situation, the first step is to speak with a Boca Raton estate litigation attorney. They can discuss your dispute, assess your options, and give you some sense of the potential outcomes should you decide to move forward. They can also provide you with an estimated litigation budget so that you have some sense of what it will cost to litigate your dispute. If you choose not to file suit, your lawyer can then possibly help you negotiate a resolution of your dispute. 

On the other hand, you may be on the receiving end of the lawsuit, and you do not get to decide to litigate. However, lawsuits rarely happen without warning. If you believe that litigation is imminent, you should contact a Boca Raton estate litigation attorney as soon as possible. 

The Lawsuit

The first step in the litigation process is to file a lawsuit with the probate court that lays out the basics of the claim. For example, a family member who was left out of the will may file a lawsuit challenging the validity of the will. The lawsuit will lay out the basic reasons why they believe the will is invalid. Once the lawsuit is filed and served upon all the parties involved in the estate, the litigation process can move forward. 

Lawsuits that are drafted and filed by non-lawyers are often quickly dismissed by the court because they fail to meet basic requirements. To avoid jeopardizing your rights, you should seek the assistance of a qualified Boca Raton estate litigation attorney in filing your lawsuit. 

Responding to the Lawsuit

Once the lawsuit is filed and served upon all parties to the estate, each party must file a response to the lawsuit. The response can be a simple denial of everything the other party claims or it can be more substantive. However, you must be very careful not to make any inadvertent admissions or otherwise say anything that you shouldn’t. Furthermore, failing to file a response may result in the court automatically ruling against you. For these reasons, you should contact a Boca Raton estate litigation attorney to respond to the lawsuit as soon as you have been served. 


Discovery is the process by which both sides must disclose the information that they have pertinent to the lawsuit. This is an important step in the discovery process because both sides use it to develop their case. For example, an unhappy heir may subpoena records from the personal representative to prove that they have breached their fiduciary duty, while the personal representative may require that heir to testify in a disposition that they have considerable gambling debts. The discovery process is very technical and mistakes can jeopardize your case. A seasoned Boca Raton estate litigation attorney can deftly maneuver through the discovery process to make your claim as strong as possible. 

Dispositive Motions

Leading up to the trial, the parties may file motions that attempt to dispose of the case. If they don’t result in the case being dismissed or otherwise resolved prior to trial, these motions often serve to focus the issues so that the trial will be more efficient.


If your case isn’t settled or otherwise resolved, it will eventually go to trial. Unlike most other trials, probate cases are typically tried in front of a judge with no jury. The judge will review the evidence, hear testimony, and hear arguments from other sides of the issue. At the conclusion of the trial, the judge will then render a decision. 

A trial is a very formal proceeding with a multitude of rules and procedures that must be followed. Failing to follow those rules can do irreparable harm to your case. No matter what side of the dispute you are on, you should not attempt to represent yourself at trial. Instead, contact a Boca Raton estate litigation attorney for help. 

Talk to a Boca Raton Estate Litigation Attorney at Ellis Law Group Today

Probate litigation is a high-stakes affair. Don’t risk the outcome by trying to navigate the probate court on your own. Contact the Ellis Law Group to speak with a Boca Raton estate litigation attorney who can help you resolve your dispute quickly and cost-effectively. Call us today at 561-910-7500 to schedule an appointment today.