Probate Standing

Few topics in civil justice have sparked as much criticism as the standing doctrine. The U.S. Constitution and some of its state counterparts require plaintiffs to allege that they suffered an “injury-in-fact” that the defendant caused and that a court can redress. A veritable ocean of commentary argues that this requirement [is confusing, ahistorical, and unmoored from its objectives. Yet a different manifestation of the standing doctrine has long lurked in obscurity. Standing issues are also common in state probate courts, where the transmission of assets from the dead to the living can affect a variety of parties. But in sharp contrast to the vast literature on standing in general civil litigation, probate standing has never received sustained scholarly attention. This Article explores this unique nexus of civil procedure and decedents’ estates. First, it demonstrates that probate standing principles have long been a tangled mess. For hundreds of years, probate judges have tried to control their dockets by limiting the right to file petitions and objections to people who are “interested” in the outcome. However, “interest” is a slippery concept in a field where rights are often contingent. Indeed, the impact of an inheritance dispute can hinge on unknown variables, like future births, deaths, the validity of estate planning documents, or the result of other litigation. Thus, courts reach wildly different conclusions about basic probate standing matters. Second, the Article argues that the costs of the standing mandate outweigh the benefits. For starters, the leading rationales for the standing doctrine—ensuring that claimants litigate zealously and preventing courts from ruling on issues that are better addressed by elected officials—do not apply to a system that is often inquisitorial and features questions about private rights, not social policy. Even worse, the standing mandate closes the probate courthouse door to assertions of grave misconduct. Thus, the Article concludes that probate judges should presumptively grant standing to anyone who might gain something from their claim. Third, the Article uses this insight to propose solutions to festering standing puzzles in will contests, creditor’s claims, lawsuits for elder abuse, fiduciary litigation, and other forms of estate-related conflict.