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Probate law documents

How does probate fraud happen, and what is the burden of proof?

by Robert Bailey | Contributor
January 17, 2023

Dealing with the loss of a loved one is a difficult period. Emotionally, it can be one of the most upsetting times of a person’s life. During this time, a decedent’s loved ones often have some involvement with the transferring of that person’s assets and carrying out their final instructions, whether they are an executor or just a beneficiary. If during that time someone takes that as an opportunity to commit fraud upon the decedent’s estate, the devastation the family and friends are feeling is only compounded. This fraud could lead to the wrong people managing and even inheriting an individual’s estate. Even if the decedent had made their intent clear through a properly prepared will, those instructions may be thwarted by the fraudulent acts of others.

To avoid probate fraud, you need to know what it is, how it may occur and the possible types of people who may be motivated to act in this manner. This article will also highlight the burden of proof required to challenge probate fraud and some helpful ways to carefully plan your estate to avoid probate altogether and take any possibility of fraud out of the equation.

Common causes of probate fraud

Probate fraud can occur in various ways. An unscrupulous executor may make unauthorized transactions or provide a fraudulent accounting of distributions and expenses. Or someone may attempt to change beneficiary designations on certain accounts of the decedent. While probate fraud can occur in different ways, the most common occurrence is when a document that is not the valid last will and testament of the decedent is probated.

Why is this the most common occurrence of probate fraud? Maybe because it is fairly easy for a will to be admitted by a probate court. The alleged will merely has to meet the following basic requirements: it is in writing; it is the express intent of the testator; it is legally signed by the decedent; and it is properly witnessed (indicated with witness signatures on the will). These are the basic requirements, and unless one of these elements is missing, the will is likely to be admitted by the probate court without a detailed inquiry.

Only when a will does not meet this low threshold does the person attempting to probate the will have additional hurdles. What those hurdles are depends on the type of document being probated. In some instances, the court is presented with what is known as a holographic will. A holographic will is a will that is handwritten by the decedent and prepared without any witnesses present. For this type of will to be properly probated, at a minimum, it must be clearly illustrated that the handwriting and signature are in fact the decedent’s. This can be done in a variety of ways, such as comparing the holographic will with other written items that have been confirmed to belong to the decedent.

In other instances, the will may be typed out but lacking a particular component, whether that be the decedent’s signature or those of the witness. For both types of wills, most states will require the party trying to probate the deficient will to provide clear and convincing evidence that the decedent intended the document they are presenting for probate to be their final will. The more requirements that are deficient in the will, the greater the burden of proving that the document was intended to be the decedent’s last will and testament. So, an individual will have a higher burden of proof if the document is missing both the decedent’s signature as well as those of any witnesses.

If there were previous properly executed wills, an individual will also have to present evidence that the decedent intended this document to revoke their prior will or, at least be considered an addition or alteration to the previous will. Beyond proving intent, the individual presenting the will for probate will likely need to prove the testator’s capacity at the time the deficient document was prepared. It’s important to check with your state’s specific probate laws as the requirements vary in some states.

Probate fraud can cost you

Common probate fraud situations

Here are some of the most common scenarios that are repeatedly litigated in probate court when it comes to fraudulently probating an invalid will:

The slighted heir

One of the most common reasons for an individual to attempt probating an invalid will is because of a newer will that removed or diminished their inheritance. If a person were previously in line to receive an inheritance and it was later removed or reduced, they may be angry enough to take deceptive steps to unlawfully secure their inheritance.

The nefarious caretaker

Often the person who is supposed to be taking the best care of an individual does not always have their best interests at heart. A caretaker with bad motives has ample opportunity to unduly influence, manipulate and even threaten an individual into changing their will for their benefit.

The “gold-digging” companion

Another scenario is a companion, oftentimes from a relationship that developed later in life, who wants an inheritance. A person motivated by greed in a close relationship with the decedent usually has a great opportunity to engage in fraudulent behavior to alter the terms of a will.

A last-minute will

Regardless of who the heirs are, oftentimes probate fraud occurs when a will is changed suddenly at the end of one’s life when the testator has limited contact with friends and family. The court will likely look with greater suspicion at a will that was created very close to one’s death. This is especially true if it results in substantial changes as to how one’s assets will be distributed.

Burden of proof

Once a will is probated, notices will typically be sent to all legal heirs. If there is a challenge to the will, the burden of proof lies with the individual challenging its validity. A person making this type of claim may be challenging one specific instance of fraud, such as forcing an individual to sign a will under duress, or they may allege a series of facts that resulted in probate fraud. Since a claim in probate court is a civil claim, it will typically require the accuser to present clear and convincing evidence that fraud occurred. While this is lower than a criminal court’s requirement of proof beyond a reasonable doubt, it is still a high burden of proof for an individual to meet. This is especially true since the types of actions that often lead to probate fraud can be hard to prove. You may have a great relationship with your parent and still find it difficult to prove that you were removed from their will because a sibling unduly influenced them to change their will.

So, what type of evidence may be used to prove that probate fraud occurred? In a few cases, there may be a single piece of evidence that can prove probate fraud. Direct evidence of a forged signature or documented communication between the accused and the decedent in which the accused party was clearly exercising undue influence may be enough evidence. Many cases will not be able to rely on a single piece of evidence but rather a combination of facts and circumstantial evidence that can collectively prove probate fraud. Some examples of facts that may assist in proving probate fraud when it involves an invalid will may include the person who made the appointment with the lawyer for both the valid will and the invalid will. You may also present evidence that shows who was present when the will was signed and who took possession of the signed will after it was signed.

Typically, proving probate fraud is very fact-specific, and no two situations are exactly the same. To help, here is an example. A decedent had a will prepared for her three children and had all of them come to the appointment. After the appointment, she gave all three children a copy of the will. However, the will that was eventually probated was allegedly prepared six months later and only one child was present for the appointment, and they were also the only one in possession of the will. While there may be other explanations for this, it could also be evidence that the one child was able to exert undue influence on their parent to get them to change their will for their benefit. The case could be made even stronger if there was documentation or communication that would prove that the sibling played a role in providing the attorney with the information to draft the will.

While it depends on the type of fraud being alleged, typically a challenger must prove the following elements:

  1. that the person being accused took certain actions (e.g., pressuring a parent to change the beneficiaries in a will) that were material to the alleged probate fraud;
  2. the accused knew what they were doing;
  3. the accused engaged in this behavior with the intent that the decedent would take certain action (e.g. change the beneficiaries in their will); and
  4. the decedent would not have taken any action absent the intentional behavior of the accused. Of course, this may look different depending on the type of claim being made (undue influence is different from duress) but the general elements are similar.

Here are some of the most common claims people raise when attempting to invalidate a probated will:

  • Existence of a subsequent will
  • If a person challenging a probated will provides a subsequent will, this may be strong evidence for claiming probate fraud. This often happens in situations when an individual knows that they have been removed as a beneficiary from a decedent’s estate so they attempt to quickly probate an old will in which they were still listed as a beneficiary.

  • Undue influence
  • Another typical claim is that the individual(s) benefiting from the probated will exercised undue influence on the decedent. This is often seen in a situation where the decedent was in a vulnerable position and the person committing the fraud had a certain level of control over them. For instance, one of three siblings may be the caretaker for their parent. If that child were to use that relationship to manipulate their parent into changing their will to remove the other two kids, this would be an example of undue influence.

  • Lack of soundness of mind
  • An individual must understand what they are doing when they sign legal documents such as a will. It could be that the individual was not of sound mind when they created and signed the probated will. While this may overlap with undue influence, the focus on this type of claim is the general state of mind of the decedent when they signed the will. If, for example, they were diagnosed with dementia before changing their will, the courts will likely consider that the probated will was fraudulent since the decedent was not of sound mind.

  • Duress
  • Another claim may be that the individual only signed the will because they were under duress. Duress is distinguished from undue influence as it is not just mere manipulation but often involves some form of threat, violence or constraint. As an example, it would be considered duress if an individual threatened to hurt the decedent or a family member if they did not sign a new will.

How to avoid probate fraud

Regardless of the claim being made, proving probate fraud can be a timely and costly endeavor. It may require depositions, subpoenas and even expert witnesses. Ideally, your best course of action, if possible, is to avoid probate fraud altogether.

The easiest way to avoid probate fraud is to avoid probate. How do you do this you might ask? Well, there are several ways. It is important to note that before you make any decisions on how to plan your estate, you should talk to an experienced estate planning attorney to go over your assets, goals and make sure your plan is customized to meet your specific needs.

Here are some estate planning strategies and how they can help you avoid probate, and thus avoid probate fraud:

  • Revocable and irrevocable trusts
  • Revocable and irrevocable trusts can be used to provide an inheritance to a beneficiary while shielding it from probate. These trusts have additional benefits beyond bypassing probate. For instance, an income-only trust may be used if you want to shield your assets from the consequences of a beneficiary getting sued or part of a divorce. This type of trust would prohibit the individual from receiving the trust’s principal but would provide them the income the principal produces.

    For those with spending or substance issues, you could create a lifetime trust that requires all spending to be approved by the trustee. Similar to your motivations for avoiding probate, this type of trust can shield your assets from potentially bad decisions by the beneficiary as well as harmful outside influences.

    For concerns about younger potential beneficiaries or just general concerns about an individual receiving too much money too quickly, you can set up a trust that distributes portions of the inheritance to its beneficiary in stages. In these situations, a trust could split up the income in thirds giving the beneficiary a third of the trust at three different ages.

  • Irrevocable life insurance trusts
  • An irrevocable life insurance trust (ILIT) is a trust that one funds during their lifetime with life insurance policies. Although you may lose control after the trust is created, you can avoid probate and control its use by how you set up the trust. A grantor can set up a trust to, for instance, provide distributions in a lump sum, periodically, or when the beneficiary attains a milestone such as a certain age or upon having a child. Once the ILIT trust is created it will be used to manage and distribute the proceeds that are paid out upon the insured’s death following whatever provisions you want to put in the trust. Having a beneficiary’s assets in an ILIT trust can ensure that the assets are distributed outside probate and are preserved from certain unplanned life events such as a lawsuit or divorce. It can also be used to protect assets from any potential creditor claims. For those with spending or other personal issues, this type of trust can provide a beneficiary with an inheritance, while simultaneously ensuring that the money will be properly spent. With this trust, you can appoint a trustee who will supervise the trust and only distribute proceeds according to your wishes.

  • Special needs trusts
  • This type of trust, while also avoiding probate, is only used when you want to leave a portion of your estate to a loved one with special needs. Special needs trusts are typically used to leave money to a disabled individual who cannot earn a sufficient amount of income or live on their own. These irrevocable trusts provide for a beneficiary with special needs while ensuring they do not lose any government benefits they receive, like Supplemental Security Income (SSI). Not only does it protect your beneficiary from losing government benefits, but it also allows the grantor to have a certain level of control over the timing of the inheritance being distributed. Instead of providing the money in one lump sum, it is controlled under the terms the grantor set up in the trust that could last for a potentially long time.

  • Life estates
  • A life estate is typically used for real estate and is a form of joint ownership that gives one person (the life tenant) the sole right to occupy and use the property during their lifetime and the other (the remainderman) a future interest in the ownership of the property when the life tenant dies. While a life estate can still be vulnerable to the life events of the remainderman, it can provide an advantage to a beneficiary and peace of mind to the grantor as the property will not have to go through probate. So, if there are unexpected or even expected actions that occur during the probate of an individual’s estate, the asset in the life estate will be protected.

  • Payable-on-death accounts
  • Another option that requires even less planning is to ensure that you provide designated beneficiaries on any accounts that allow you to do so such as retirement and bank accounts. If you have a designated beneficiary for any of these accounts, the designated beneficiary will be able to inherit the assets without having to go through probate.

  • Hold assets jointly
  • Another option for certain types of assets is to simply hold them jointly with the individual you desire to own that asset when you pass away. Similar to life estates, this is typically done with real estate but can also be done with other assets such as bank accounts. Holding an asset jointly allows that asset to simply pass to the joint owner when you die without having to go through probate. Just make sure that the designation of ownership is clear and that you are certain you want that individual to own the asset solely when you pass away.


Creating a will, and estate planning in general, is essential if you want to make sure you protect your assets and beneficiaries. Having a clear estate plan places you in control of who gets what assets, how they get them, and when they get them. When you put together a well-thought-out estate plan it ensures that the assets go to your intended beneficiaries regardless of whatever unexpected life events may occur. But there is always the possibility of fraud. Finding creative ways to avoid probate can reduce this risk.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at

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