Common Issues That Can Occur During Probate
Probate is the court proceeding where a will is verified, and an estate is administered according to the terms of the will. Probate is also used where no will exists, in which case an estate will be administered under the terms of DC law. The process includes the collection of assets, the liquidation of liabilities, the payment of taxes, and the distribution of property to heirs. Our lawyers provide representation in both probate and estate administration. Each state requires probate as this process allows the court to check for potential fraud in a person’s last will and testament and ensure that the assets within a will are properly distributed.
If there is a will in place, the probate court will ensure that the last will and testament is valid and then direct the executor to pay the principal’s debts and distribute assets as directed by the will. However, if someone passes away without a will, the probate court must first appoint a personal representative—this representative performs the same tasks that an executor does when a valid will is in place.
Now that you have a general idea of how probate works, below are common issues that occur during probate.
Common Problems that Arise During Probate
There are many different issues that can occur at any point during the probate process. However, the most common issues with probate commonly include:
A Person Named as Executor not Wanting the Role
When a person creates a will, they must also name an executor to a will. The executor takes on significant responsibility concerning managing assets and working through the probate process. Thus, most people ensure that the person they choose to act as the executor is willing to take on these responsibilities. However, the court will appoint someone else to administer the probate proceedings if the executor does not want these responsibilities.
A Dispute Over the Value of the Estate
Accurately valuing property or the value of an estate is not only essential but also complex. The main reason why accurately valuing an estate is important is because the value of the estate will dictate the estate taxes the estate must pay.
A Challenge to the Validity of the Will
Sometimes a family member or friend will challenge a will. The challenge may stem from the fact that the creator of the will made a verbal promise to someone that is not reflected in the will. Additionally, a family member or friend may state that the creator of the will made the document under duress. Other challenges occur if a beneficiary believes the creator of the will did not have capacity to create the will. However, anyone challenging the validity of the will must prove why they believe this document is fraudulent.
An Assertion that There is a Newer Will Superseding the Old One
Certain people make multiple wills. If this is in the case, it is necessary to determine the newest will that is enforceable.
Allegations that an Executor is not Fulling their Fiduciary Duty
A fiduciary duty is an extremely important part of an executor’s responsibilities. An executor has a fiduciary responsibility to the estate. Thus, they must manage assets carefully and for the benefit of the estate. If the executor does not fail to properly manage assets, takes the creator of the will’s assets, or fails to live up to their obligations, the beneficiaries of the estate may be able to sue the executor for damages.
Arguments Between Family Members and/or Beneficiaries
If family members or friends begin to argue about who should act on behalf of the estate or receive certain pieces of property, the probate process can become very difficult.
Assets in Multiple States
The location of assets in an estate will play a large part in how assets distribute to the beneficiaries. This could include if beneficiaries live in different states or if the assets are located in multiple states or countries.
How a Probate Attorney Can Help
Not every family needs to hire a probate attorney after the loss of a loved one. However, because each state has specific laws and procedures tied to probate, finding correct and relevant information is difficult. By hiring a probate attorney, you are enlisting someone with knowledge of the state-specific laws. Furthermore, you will also have someone on your side to help you deal with potential creditors. Finally, a probate attorney will be able to help you distribute the assets in the most tax-efficient way.
Finally, a probate attorney is helpful in assisting with marshaling and valuing all the estate assets, assisting with finishing the accounting, completing the estate tax returns (death tax returns), and overseeing the asset distribution process. Most importantly, however, a probate attorney can asset the personal representative with preparing the initial pleadings to open the estate. A probate attorney can also help to guide the personal representative through their fiduciary obligations and important deadlines.
Contact our law office for more information
For more information on common issues that can occur during probate, contact Antonoplos & Associates at 202-803-5676. You can also directly schedule a consultation with one of our attorneys.