Who Can Force An Estate Into Probate?

One of the bigger worries that people bring up with an estate planning lawyer is the fear that someone will be able to force things into probate. In the strictest sense, anyone can hire a probate attorney, put down the filing fee, and ask the court to consider their petition. However, the court is only going to take the petition seriously if the party has standing, otherwise, it'll be rejected and the court will keep the fees.

Who has the legal standing needed to get a serious hearing before a probate court? Here are three groups that every probate lawyer and estate planning attorney will tell you has a good chance.

Governments, Especially Tax Agencies

Local, state, and federal tax authorities almost always will get the court's attention if they want it during an estate proceeding. One of the most basic arguments for pushing an estate into probate is to make sure all the taxes owed by the deceased will be paid. Notably, these government agencies still have to show good cause for bringing a case. That usually means they have reason to believe the deceased owed significant taxes or committed some form of fraud.

An estate planning lawyer will typically encourage a client to overfund tax obligations in anticipation that their last year of taxes won't be paid before they pass. For the most part, a court should give the executor or administrator of the estate time to settle taxes. The main reason a tax authority will ask for probate is that they fear there's a chance a large tax bill will go unpaid if they don't demand probate.

Creditors

If someone dies with outstanding debts, the creditors have every right to insist that those are paid before the estate's assets and proceeds are distributed. As with taxes, an estate planning lawyer will try to have a client fund debt obligations to make sure creditors can't create trouble in probate. Still, creditors are entitled to their day in court.

Close Relatives

Although they're far from guaranteed to win, close relatives have a good chance of at least getting a hearing. This almost always means genetic and adopted children of the deceased, although some creative interpretations might get a judge to hear a case involving an adult-dependent or a minor with a loco parentis relationship with the deceased.

Nearly all over relatives are unlikely to get far with a petition. The one possible exception is if someone appears to be the closest surviving relative of a childless person. 

For more information, speak with a probate attorney.