Clawing Back Assets After Probate

Contesting a will can be an expensive and painful struggle. But suppose the will has already been probated (accepted by the court as valid) and the assets distributed to the beneficiaries? Then a challenge becomes exponentially harder, especially as the assets may have been sold or disposed of.

New information might have come to light. Perhaps a forgery is discovered or a previously unknown beneficiary shows up. Maybe a forgotten bank account is unearthed. Courts must improvise where no clear rules exist for a fair solution. Occasionally, if significant fresh details emerge, the probate process may need to be relitigated. More often, the will can just be reopened and the assets redistributed.

When not to let sleeping dogs lie

Disgruntled family members and disappointed beneficiaries occasionally keep contesting post probate. Maternity and paternity claims from formerly unknown children are rare (and must be credibly substantiated), but various other claims do arise, such as:

  • A more recent will is located.
  • The probated will or signatures on it turn out to be forged — these must be thoroughly substantiated.
  • New evidence reveals that the deceased was either coerced or lacked the mental capacity to make the probated will — again, the evidence must be compelling.
  • State-defined provisions for distributing some portion of assets to a spouse or child have not been observed.

If the original probate process deviated, it may open up grounds for a challenge. For instance, each state has its own stipulations as to the required number of witness signatures and whether they must be notarized. While some states permit handwritten (holographic) wills, others do not. If such technical requirements have been neglected, the original will might be declared invalid and either be replaced by an alternative will or have intestacy rules substituted.

As long as they comply with relevant timelines, heirs can also sue executors and hold them personally liable for unfair or illegal decisions. Executors are therefore advised to obtain a release of liability from all beneficiaries before they finally release the estate’s funds. If the heirs are reticent to sign, a formal accounting can be filed with the court, providing a set period of time to raise objections.

A tough row to hoe

Time is not on the side of those who hope to revive a will contest after probate has been finalized. If the original beneficiaries are still smarting at a perceived injustice, the battle can drag on for years. The longer the struggle takes, the less likely it becomes for the beneficiaries to locate witnesses who clearly remember the disputed events and are also willing to testify. As noted above, any fraud or criminal conduct must be established by valid evidence. At the same time, judges may not be sympathetic to a relaunched claim that smacks of pure resentment.

The clock is ticking, too. Statutes of limitation, which determine the maximum time before instituting legal proceedings, vary widely among states. Most allow two years to challenge from the time the will enters probate, except for minors, who have two years from when they reach the age of majority. It is essential that will contestants review any relevant timelines as well as the dates from which their countdown starts.

In addition, some wills include “no contest” clauses, which prevent an unsuccessful contestant from receiving any inheritance at all. However, many such clauses are unenforceable or ineffective and can be overturned if a challenger can show reasonable cause.

Reopening an estate

When new assets are found or a new creditor appears, an estate can be reopened. The will may not be in dispute but assets must still be redistributed. The prior personal representative or other interested parties submit an Application for Petition to Reopen. The petition should explain the background facts and make the case for reopening. The personal representative may need to serve a copy to all heirs listed in the original probate petition.

The personal representative would be responsible for collecting, safeguarding, appraising and compiling an inventory of any newly found assets.

You will probably need professional help for dealing with reopening an estate, so be sure to check promptly with an experienced probate attorney.

Reach out to Roz Carothers and her team at Triplett & Carothers to learn more.