Whether you are starting the probate process or are just curious about what it is like, it is important that you understand exactly what probate is and the various issues that can occur. Part I of this two-part series takes a deeper dive into the probate process and covers five common problems that can occur. Stay tuned for Part II to learn about five more things that can go wrong during probate and tips for how to avoid them.
First and foremost, probate can be overwhelming – especially if you try handling it without the help of an attorney. Probate is a complex legal process that takes place after someone dies. It includes:
- proving in court that a deceased person’s will is valid (usually a routine matter) if they had a will,
- identifying and inventorying the deceased person’s property,
- having the property appraised (home, precious jewelry, art collections, home furnishings, etc.),
- paying debts and taxes, and
- distributing the remaining property as the will directs (or as state law directs, if there is no will).
As you can see, the probate process is not a one-and-done task. It requires significant time and energy, and without proper planning, any (or all) of the following can go wrong:
#1 The personal representative doesn’t want to take on the responsibility.
When a person creates a will, they typically name a personal representative to manage the affairs of the estate. If the chosen personal representative isn’t interested in fulfilling this role, however, or is not able to do so for whatever reason, that person can decline to be officially appointed by the court. The court will then need to appoint someone else.
Therefore, it is important to talk to the person you are considering for the role of personal representative. You need to know if they want to – or have the time to – fulfill the role ahead of time. Many people are honored to be asked, but have a difficult time saying no if they really are not up to the task.
#2 The personal representative fails to fulfill – or breaches – their duties.
The personal representative of an estate has a fiduciary duty. This means that they have a duty to preserve good faith and trust, and must put the interests of the deceased ahead of their own. If the personal representative acts in their own self-interests, or otherwise fails to fulfill their duties during the probate process, there are legal remedies available. The court can remove them, and someone else can be appointed to take care of assets and oversee the probate process. In some cases, heirs or beneficiaries can take legal action for breach of fiduciary duty against the personal representative if that person has caused financial loss due to failure to fulfill their obligations.
#3 The will is contested.
A will can be contested if someone does not believe that it is a true reflection of the wishes of the deceased. A person who wants to contest a will must prove that the will should not be probated because of a problem. For example, the contester could claim that the decedent created the will under conditions of fraud or duress. It is up to the person who is contesting the will to provide appropriate proof that the will is not valid. However, the personal representative of the estate, heirs, and/or beneficiaries can present alternative evidence showing that the will is actually a true reflection of the wishes of the deceased. Keep in mind, however, that you stand a better chance of winning that argument if the will was executed according to the laws of your state.
#4 Creditors make costly claims.
During the probate process, creditors have the opportunity to make claims against the estate. While valid claims must be paid out of estate assets, creditors have the burden of showing that they have a right to collect. In some cases, the state will act as a creditor and try to recoup funds spent on Medicaid services for the deceased. It may be possible to stop this Medicaid estate recovery under certain conditions and to protect the assets of the estate.
#5 Failure to pick up mail from the decedent’s property.
As soon they can, personal representatives should ask that the post office forward all mail to an address or P.O. Box that they can access easily and frequently. Failure to do so can result in the personal representative missing out on important notices and claims from creditors and/or lenders. Additionally, when mail piles up, it signals that the property is vacant. This makes the property attractive to burglars and a target for vandalism.
To recap, this article covered the main aspects of the probate process and five things that can go wrong. If you are still unsure about probate and how to handle it, do not fret. The probate process is not an easy task for anyone, and there are ways to make it more manageable – especially with the help of a licensed attorney. Stay tuned for Part II to learn five more things that can go wrong during probate and tips for handling them.