While necessary, the probate process is complicated and can take a long time. While it should be fairly smooth, sometimes probate problems arise, which can lengthen the process more. In this article, we’ll explore common probate concerns that can draw out the process.
What Is Probate?
Probate is the legal process that recognizes the will of an individual who’s passed away and appoints an executor to administer the estate and distribute the assets to the beneficiaries. Each state has different laws, so it’s wise to consult an attorney about the probate proceedings in your state.
Often, the will names the executor of the estate. They are responsible for collecting and distributing the deceased’s assets between the beneficiaries. The court oversees the probate process and follows the state’s intestacy rules if there is no will.
7 Common Probate Issues
The probate process oversees the distribution of the deceased’s estate. Even though this process is essential, some challenges can make it lengthy, complex and cumbersome. These are some of the difficulties associated with probate.
1. Process Timeline
Probate is inherently a lengthy process, even for families with simpler and smaller estates. Some states have tried to streamline the process, but the reality is that it is still slow. Big legal markets tend to have the longest timelines because they have more restrictions and face backed-up court schedules. Depending on your state, probate can take anywhere from a few months to several years.
The bigger and more complex the estate is, the longer the process will take. Other factors, such as the type of assets, form of ownership, marital property issues and the ownership of businesses, can also affect the timeline. The process can be very challenging for grieving families and beneficiaries who need the finances from the inheritance to cover funerals or other expenses.
2. Complex Procedures
There is a lot of complicated paperwork involved with the probate process, which can lead to people making mistakes on documents, lengthening the process even more. If the deceased estate is simple, some states, like California, offer a simplified process to transfer the estate, but many do not realize this and file for the lengthy process.
In other cases, people don’t know they need to file for probate at all. The result can have repercussions — for example, if spouses don’t file probate, their kids may have to manage two probate processes simultaneously when they pass away, too.
The executor needs to keep proper documentation to stay on top of these complexities. Their detailed records must include the deceased’s assets, debts, taxes and each beneficiary’s share. They also need to submit necessary legal documents to the court. Failing to keep accurate records and submit documents to the court can result in legal issues and delays.
Executors also need to navigate complex state probate laws and federal tax laws. These laws outline the steps the executor must take to distribute the deceased’s estate, pay off debts and settle disputes arising in the process. Following these is essential to avoid adverse legal repercussions. It’s wise to seek counsel from a legal practitioner to ensure you follow the laws correctly.
3. Assets Values
Locating and valuing the deceased assets often proves to be a challenge. Some of the assets the executor needs to find include real estate, investment accounts, bank accounts and personal belongings. Because of the variety of assets, they may need help from professional appraisers or accountants to identify and value them. Additionally, sometimes, the deceased may have hidden assets, such as a property in another state. The executor must thoroughly search for assets to ensure they include everything.
4. Issues With Executors
When a person draws up their will, they name an executor of their estate. This person is responsible for managing the estate and ensuring the probate process runs smoothly.
Many people named as executors choose to carry out the role, but some choose to opt out of the responsibility. If the person turns down the role of executor, the court can appoint another person. For this reason, it is beneficial for a person to name more than one executor in their will.
Another problem that can occur is that an executor doesn’t perform their duties properly. When beneficiaries feel that the executor isn’t settling the debts or distributing the assets as they should, they can file a claim against them or have them removed as the executor.
5. Will Disputes
If beneficiaries feel that the will is unfair, they may contest it, further complicating the process. Often, these disputes are emotionally charged and time-consuming, so the executor needs to be able to handle them professionally. A legal professional can advise them on how best to manage these disputes. Sometimes, heirs challenge the will’s validity because they believe the deceased was under undue influence when they made it or that it is fraudulent.
Another reason heirs contest a will is because the deceased had multiple wills. The deceased’s most recent validly written will is their last will and testament, and it governs the estate. If an heir finds a previous will and believes there is a reason why the latest one isn’t valid, they can contest it. This process can be lengthy and fraught with conflict between the heirs.
It’s important to note that heirs cannot simply contest a will because they are unhappy with the contents. Any beneficiaries that do make such claims need to be able to prove why the will is invalid. A will is a legally binding document — though not impossible, contesting it can be time-consuming and costly.
6. Estate Claims
Probate allows creditors and other parties to put forward their claims against the deceased estate. The executor is responsible for carefully considering, addressing and setting claims that arise. If the deceased had debts when they passed away, the creditor can claim against the estate to collect their money. Some fraudsters may also take a chance in collecting money, so the executor needs to do due diligence to ensure the creditor is legitimate. Failing to do so can have legal implications.
Other people, such as business partners and family members, may also file a claim against the estate. It’s up to the executor to carefully address all claims to avoid legal issues and challenges to the will.
7. Debts and Taxes
Settling the debts and taxes can be challenging, especially when the deceased was heavily in debt. The executor must pay off debts, file a final income tax for the deceased and pay off any taxes they owe.
Sometimes, the debt can be large, leaving insufficient funds to pay them off and settle estate tax, probate fees and distributions to the heirs. In such cases, there is a priority claim where the executor must settle some financial obligations before others. They must carefully manage the finances to pay debts and taxes while leaving enough assets to distribute to the heirs.
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Probate is a lengthy yet necessary process. If issues arise, you may wait several years to access your inheritance. The process can be painful even with a less complicated or smaller estate.
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