When someone dies, their estate is often subject to a legal procedure called Probate. The process is designed to make sure assets are distributed in accordance with the will, or state law if one doesn’t exist. The probate process sounds simple in theory. In practice, probate can be a complex process.
Families who are grieving the death of a loved-one suddenly find themselves faced with paperwork and deadlines. Sometimes, they even have to deal with disagreements. Not only is it important to follow the law, but also to navigate a complicated process that can be financially and emotionally overwhelming.
Take a look at the probate issues that are most commonly encountered and learn how to avoid or resolve them.
1. Will contests and disputes among heirs
When someone contests the validity of a will, it can be a very stressful situation. One sibling may believe that the will is forged, or the deceased was forced to sign it. Some people may argue that the document doesn’t accurately reflect the wishes of the deceased.
Solution
To decrease the likelihood of a will contest, it is helpful if the will’s original document is clear, signed properly, and witnessed in accordance with state law. In some cases, a video recording of the will being signed (while the signer is in good mental health) can be used to prove the intent of the signer and their mental capacity. Mediation is another way to resolve disputes between heirs, without having to go to court.
2. Documentation Missing or Unclear
The process of probate relies heavily on documentation, including death certificates, original wills, deeds and account statements. The process can be slowed down or stopped if documents are missing. When things aren’t spelled clearly, it can lead to confusion and conflict.
Solution
Organizing all legal documents into a safe but easily accessible place before probate is required can make a huge difference. Gathering documents early and keeping a list will help executors move things along.
3. Mistakes and Misconduct by Executors
The executor is legally responsible for managing the estate. Executors can make mistakes that are not malicious, such as missing deadlines or misvaluing assets. Executors can act against the best interests of beneficiaries, delay distributions or misappropriate funds.
Solution Being a executor comes with a lot of responsibility. Keep detailed records, keep in touch with beneficiaries regularly, and get professional help if needed. Beneficiaries who suspect misbehavior should act immediately. Courts can replace or remove an executor, if needed.
4. Creditor claims and Debt
Debts and taxes have to be paid before heirs can receive anything. Creditors may file claims against an estate and, in some cases, take legal action. It can be especially upsetting when heirs are unaware of debts, or the estate does not have enough liquid assets.
Solution Executors must publish an “advance notice to creditors”, as required by the law. It gives creditors a time limit to submit claims. A clear list of assets and debts upfront will make it easier to plan the payment of debts.
5. Delays to the Probate Process
Probate can last for months, or even years. The longer it takes, the more complicated the estate or the more disputes there are. Sometimes, the delay is due to incorrect or late paperwork.
Solution
Staying organized and responding quickly to court requests all help speed up probate. Mediation can be a faster solution than litigation if delays are due to disagreements.
It can be difficult, but it does not have to be a nightmare. Planning, communication and organization can prevent many common problems.
Understanding the common pitfalls in probate and how to avoid them can save you time, money, as well as stress. The smoother and more efficient the process is, the better prepared and proactive you are.
This post was written by a professional at Bonardi & Uzdavinis, LLP. Bonardi & Uzdavinis, LLP is a boutique, full service law firm providing its clients with a wide range of representation. Our primary areas of practice include real estate, probate attorney st petersburg fl, personal injury, construction, and commercial litigation. If you are looking for a real estate attorney or personal injury attorney in Tampa Bay contact us today for a case evaluation today!
