Probate in Transition: Global Reform, Rising Disputes and the Shift Beyond Wills
Probate is undergoing a fundamental transformation. Across jurisdictions, legal reforms are simplifying processes, while rising disputes, cross-border complexity and shifting family dynamics are exposing the limits of traditional wills.
At the same time, a new generation of wealth, particularly in China, is creating fresh challenges around succession, governance and legacy. Advisers are responding with more integrated, forward-looking strategies that place equal emphasis on structure, reputation and the wellbeing of beneficiaries.
For generations, the last will and testament served as the cornerstone of estate planning, giving individuals a clear mechanism to direct how their assets should be distributed after death. Yet the probate process, the court-supervised validation and administration of a will, is increasingly criticised for its delays, high costs, public exposure, and vulnerability to bitter family disputes.
High-profile cases continue to highlight these vulnerabilities. In the UK, George Michael’s estate, valued at around £97 million, faced legal challenges from his former partner Kenny Goss under the Inheritance (Provision for Family and Dependants) Act 1975. In the US, Michael Jackson’s 2002 will was upheld by the Los Angeles Superior Court despite challenges from relatives questioning his mental capacity, with ongoing litigation and major catalogue sales continuing years after his 2009 death.
Regulatory change and simplification
Against this backdrop, some jurisdictions are beginning to rethink the role of probate altogether.
India has taken a significant step to simplify probate and speed up wealth transfers. A recent legal reform has removed the requirement to obtain probate in many cases, reducing delays and court involvement.
Hitesh Sanghvi, Managing Partner, Hitesh Sanghvi, law offices, Mumbai said. “India generally has a complex and dynamic legal and regulatory framework which is constantly evolving. Notably, following the exclusion of Section 213 of the Indian Succession Act, 1925 effective 21 December 2025, obtaining probate for a will is no longer mandatory. Following this amendment, the law has become more uniform, rational and efficient, removing distinctions based on religion and location, and in many cases eliminating the need for court involvement.”
This removes the mandatory probate requirement that previously applied to wills of Hindus, Buddhists, Sikhs, Jains, and Parsis involving assets in Mumbai, Chennai, or Kolkata. Probate is now optional nationwide, enabling faster, less court-dependent intergenerational transfers.
Sanghvi said. “That said, safeguards remain important. Videography of the will, obtaining a mental health certificate, and registration of the will, which is a simple process outside the court system, can significantly reduce the risk of challenges on grounds such as incapacity or authenticity. These measures help ensure that the true intention of the testator is upheld within the statutory framework. This reform is expected to benefit ultra-high net worth individuals with complex asset structures, including property, financial assets and liabilities, by providing greater certainty, simplification and faster intergenerational transfer.”
The shift beyond traditional wills
Yet while some regions are simplifying probate, others are moving away from the will itself.
Joshua Rubenstein, National Chair, Private Wealth, Katten Muchin Rosenman and Chair of the forthcoming Citywealth Forum 2026 in London on 12 May, has long been at the forefront of this evolution.
“For centuries, a last will and testament was the cornerstone of everyone’s estate plan, leaving directions, fully amendable prior to death, with respect to who gets what, on what terms, and how debts, administration expenses and taxes are paid. To safeguard against forgeries, there are strict procedures required to prove (probate), in a court of competent jurisdiction, that the will is the valid last will of the testator. Those procedures vary from jurisdiction to jurisdiction, but they include that the will must be in writing and signed by the testator in front of witnesses who attest (a) the testator (i) declared it to be his or her will, (ii) had testamentary capacity, and (iii) was free from duress, and (b) the will was properly executed.”
“More recently, clients and advisors alike have voiced objections to the probate process, including that it is expensive, the courts are badly backlogged, particularly post-Covid, so there can be enormous delays, and one’s wishes would become a matter of public record. There are also some jurisdictions in which once a will is probated, the court stays involved in the administration of one’s estate. Early ways of avoiding probate and preserving privacy, at least with respect to some of one’s assets, were life insurance policies and pension plans (which passed not by will but by beneficiary designation) and jointly held property (which passed by operation of law).”
“Today, however, dozens of new kinds of ‘testamentary substitutes’ have arisen, which have the effect of making it possible to make almost any asset pass by beneficiary designation or operation of law. Many financial institutions hawk these accounts as a means of avoiding “dreaded” probate. But in fact, the proliferation of testamentary substitutes has led to a spate of new kinds of litigation, as one’s will may express an intention for assets to be divided one way, but there may in fact be few if any assets over which a will can operate. Without a will to act as the quarter back for one’s estate plan, disappointed beneficiaries can be confronted with inconsistent and outdated beneficiary designations each time an account is opened, leaving no way convenient way to marshal estate assets to pay debts, administration expenses and taxes. It is also harder to prove that the opening of these accounts was truly the informed act of the decedent.”
This evolving landscape has accelerated the shift toward testamentary substitutes while underscoring the need for robust planning to mitigate rising disputes.
Rising disputes and capacity challenges
The consequences of this shift are increasingly playing out in the courts.
Adam Streisand, Partner, Sheppard Mullin Richter & Hampton, Los Angeles, also one of America’s leading private wealth litigators, sees these tensions playing out daily in the courtroom.
“As for key trends, we are seeing an increasing number of Britney-style conservatorships not only for people who are elderly and suffering from dementia, but younger people struggling with mental disorders and substance abuse. We also see more and more Murdoch-style succession fights, including, as is the case with Rupert, where the founder is still alive and the business is owned by an irrevocable trust or, not the case with Rupert, where the founder is losing cognitive functioning.”
Defence strategies for the elder generation
On defence strategies for the elder generation against capacity attacks, Streisand notes: “The first step is careful and appropriate planning that establishes protections and standards for challenging capacity. After that we must take it as it comes and it’s very fact dependent. But careful who you mess with.” Suggesting that a patriarch with fully funded lawyers might be a formidable foe.
Streisand’s recent high-profile work includes acting for Rupert Murdoch in disputes concerning the future control of Fox and News Corp, highlighting the increasingly complex and high-stakes nature of modern succession battles.
Cross-border execution failures
These challenges become even more complex when estates span multiple jurisdictions.
Tom Frankel, Senior Lawyer in the Family Office & Private Client Team at KPMG UK notes that adding cross border complexities to the picture often only compounds the issue. He says “undertaking the role of an executor of a cross-border estate should be easier than ever given the rapid advances in communication technology, allowing them to access the information they need to report and administer a deceased person’s assets in other countries. Despite this, we are continuing to see examples of both inertia and a general lack of understanding by executors in other countries of their wider legal duties and responsibilities in overseas jurisdictions.”
Frankel highlights a separate hurdle around UK Court of Protection deputyship orders and their recognition in foreign countries. “In a recent case the deceased’s widow lost mental capacity and a deputy was appointed to manage her property and financial affairs. Partly due to the inaction of the executors in administering her late husband’s estate, she has been left with a lack of liquid funds to cover her rising expenses, which is a real problem given her declining health and the need for increased care.”
“Although many financial institutions have discretionary powers in these urgent circumstances, we have found that some overseas banks take a very rigid stance to legalise the UK deputyship order. This is despite, in this case, the delay being highly detrimental to the widow’s health and welfare. It demonstrates the importance of careful advanced incapacity planning wherever possible, ensuring that the right powers of attorney (or local equivalents) are in place in each of the relevant countries.”
Global wealth transfer pressures – the Chinese handover
Beyond legal process and administration, broader structural forces are also reshaping succession planning globally.
Clifford Ng, Co-Managing partner of Zhong Lun’s Hong Kong office said. “Hong Kong finds itself at interesting crossroads: demographic, financial, political, legal and fiscal. A recent Economist article discussed the unprecedented wealth transfer about to take place in China. This is not just China’s version of the ‘Great Wealth Transfer’ from baby boomers to their heirs but the first time the generation of incredible wealth creators in China from the 80’s and 90’s when China first ‘opened up’ pass on their fortunes and businesses to their heirs. Inevitably, some families are not as prepared as they should be and disputes arise: who is supposed own what and who can manage the business. ‘Heirs’ pop out from the woodwork, everyone lawyers up and names end up in the press and online.”
“The capital markets have come back to life big time from the doldrums of the past several years. Listings in Hong Kong out-raise those in the US markets. However, the current geopolitical climate means there is an overarching concern over the movements of capital, intellectual property, assets, supply chains and the spectre of anything AI. In any case, we are in a new generation of wealth creation and proper planning at the outset is needed.”
“In addition to the capital markets, Hong Kong has opened its borders both legally and physically making it easier for more Mainlanders to work and live in Hong Kong with better infrastructure making regular commutes almost effortless. As more families lead multi-jurisdiction lives and with higher value assets, the line whether estate and matrimonial asset laws of Mainland China or Hong Kong should apply are increasingly being tested.”
“Meanwhile, the use of ‘offshore trusts’ as a planning vehicle is being challenged by regulators and tax authorities. There is even renewed talk of the introduction of a Chinese estate tax leading some to ask: Why use a trust? As many of us who practiced in other jurisdictions have said for too long, the trust was not set up for tax planning; it is for succession planning.”
“Which takes us back to the first question: the Great Wealth Transfer could be a wealth destroyer. Messy family battles should not impact public markets. Trusts, wills, insurance, whatever is needed to provide for a smooth transition is good for the family, the market and those of us who make a living on the sidelines. We can only hope that the headline and online grabbing cases become a call to action to prepare properly so the Great Wealth Transfer is a smooth one.”
From reactive probate to proactive planning
In response to these growing risks, advisers are increasingly shifting towards more proactive and integrated planning strategies.
Paul Lowery, Partner, Head of Wills Trusts and Probate at Boyes Turner said. “There is a growing emphasis on proactive structuring designed to reduce the risk of future dispute and delay. Complex family arrangements, international assets and the increasing importance of digital property, image rights and legacy management mean that a Will alone is rarely sufficient. Carefully integrated estate planning using trusts, corporate and lifetime structures is now more common, supported by clear contemporaneous evidence of intention and capacity. Clients are also more alive to issues of privacy, governance and reputational risk, particularly where estates may attract public or media scrutiny. As a result, the adviser’s role has evolved from simply drafting testamentary documents to designing joined up succession strategies that provide clarity for fiduciaries and help preserve both value and legacy across generations.”
Reputational planning for high profile estates
For the most high profile families, this planning now extends beyond legal and tax considerations to privacy and reputational risk.
Lowery said.“While still relatively rare, particularly outside the ultra-high-net-worth segment, this approach is becoming increasingly relevant for high-profile estates. Where an estate is likely to attract media attention or public scrutiny, advisory teams will involve reputational or media specialists at the planning stage to sit alongside traditional legal and tax advisers. The focus is not on managing disputes, but on anticipatory planning, putting appropriate governance, communication protocols and decision making frameworks in place to support executors, protect privacy and preserve long term legacy, rather than reacting once issues arise.”
A shift towards values led succession planning
At the same time, a more fundamental shift is taking place in how families themselves approach succession.
Natalie Butt, Director, Private Client, Crowe UK said. “What I’m seeing increasingly with families is a shift in the way conversations about succession, wills and legacy are framed. There is still a strong focus on tax efficiency and protecting value for the next generation, but those discussions are now much more closely intertwined with concerns about beneficiaries as people rather than simply recipients of assets. Clients are thinking carefully about capacity, vulnerability, resilience and the realities of modern life, and how these should shape both the structure of their estate planning and the timing of conversations with family members. Succession planning has become less transactional and more values led, with legacy defined not just by what is passed on, but by how it supports and safeguards those receiving it.”
“Alongside this, I have noticed a much greater openness around mental health. Families are more willing to talk about anxiety, depression, addiction and the pressures beneficiaries may already be carrying, and to acknowledge that these factors should inform decision making. This has led to more nuanced discussions around control, flexibility and long term protection, rather than one size fits all solutions. For many clients, putting clear and thoughtful structures in place is as much about reducing future emotional strain and uncertainty as it is about legal or tax outcomes. These conversations can be difficult, but they are also often the most meaningful, allowing clients to approach succession planning with greater empathy, clarity, and confidence.”
Conclusion
Probate is no longer simply a legal process, it is a reflection of broader economic, social and generational change. As wealth becomes more global, more complex and more visible, the risks of delay, dispute and reputational fallout continue to grow.
What is emerging in response is a more holistic model of succession planning, one that combines legal precision with strategic foresight and a deeper understanding of family dynamics. From the unprecedented wealth transfer underway in China to the growing openness around mental health and capacity, the focus is shifting from the mechanics of inheritance to the long-term resilience of those who receive it.
In that context, the future of probate may lie less in the will itself, and more in the structures, conversations and safeguards put in place long before it is ever needed.
Postscript: Industry insights and practical strategies
Alongside taxation and geopolitical pressures, capacity remains one of the most complex and contested areas in modern estate planning.
These themes will be explored in depth at the Citywealth Forum 2026 on 12 May at the Nobu Hotel London Portman Square. Joshua Rubenstein chairs the full-day event and will moderate the dedicated panel on Litigation, Capacity.
Drawing on real-world experience, panellists including Rubenstein, Clare Archer, Christopher S Cook, and Jessica Medus will address the practical difficulties that arise in private wealth practice. Key challenges include fluctuating capacity, which can vary significantly depending on the specific task and even the time of day, the effects of medication, hydration levels, and family visits, and the frequent problem of competing expert medical reports. Rubenstein has highlighted useful US innovations such as “lucid moment” cases and anti-mortem probate, the ability to probate a will while the testator is still alive, allowing capacity to be tested directly. He has also discussed the strategic use of Alaska trusts to take advantage of these legal tools.
Important practical takeaways emerging from the forum preparations include the value of drafting trusts with objective capacity mechanisms, for example, requiring declarations from named individuals or medical professionals, rather than relying on subjective assessments that can lead to contentious court hearings. The panellists will stress the importance of clearly distinguishing between business capacity, relevant for trustees and advisors, and testamentary capacity. They will also emphasise the protective role of enduring powers of attorney, which can help resolve or significantly narrow potential litigation when capacity is later questioned. Finally, the panel will underline the growing need for periodic reviews of advisor suitability, as both clients and their long-standing advisors age and client needs evolve.
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