07/23/2026
Probate should not be avoided...Probate Litigation Should!
If I had a nickel for every time I heard a client say, “I want to avoid probate,” I would have an awful lot of nickels! In New Jersey and Pennsylvania, most probate proceedings are neither long nor expensive. Probate is quick, relatively inexpensive, and necessary. This is why we call New Jersey and Pennsylvania, “probate friendly” states.
Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries. Not all of a decedent’s assets will pass through probate. Property that can bypass probate includes (1) life insurance or retirement plan proceeds, (2) real estate, bank or brokerage accounts held in joint names with rights of survivorship, (3) and property held by a trust.
Probate litigation is sometimes confused with probate. Probate litigation happens when there are challenges and conflicts related to the affairs of the deceased requiring court intervention. Examples of probate litigation include:
• Will contests – a challenge to the validity of the will itself, whether based on improper ex*****on or claims of undue influence and lack of capacity;
• Disputes among heirs or beneficiaries over how assets are being divided or how the will should be interpreted; and
• Allegations that the executor has breached their fiduciary duty and not fulfilled their responsibilities properly.
Probate litigation can be slow, expensive and emotionally difficult for the parties.
Proper estate planning reduces the risk of probate litigation. While there is no way to control what happens once you are gone, a clear and well drafted estate plan will greatly minimize the chances that it will be challenged in court.
A diligent estate planning attorney will spend the necessary time to consult with the testator to ensure that they have capacity, they have chosen an executor who is both trusted and competent, and who can anticipate potential challenges and draft a document to address those potentialities.
