What are the Most Common Problems that Arise During the Probate Process?

When a person passes away, their estate is subject to the probate process. If they left behind a valid will, the process should generally be fairly straightforward. However, even when there is a will in place, there’s always a chance that some unforeseen problems can arise during the probate process.

Here are just a few examples of some of the types of problems that can arise during the probate process:

• An unavailable or unwilling executor: Problems can arise right off the bat if the person named to be the executor of the estate is either unavailable or unwilling to fulfill the duties of the position. Perhaps the executor preceded the decedent in death, or simply does not want to take on the responsibility associated with the role. In such a case, the court may need to begin the process of finding someone else to take on the role.
• Will challenges: There are some cases in which an heir or potential heir challenges the validity of the will out of a belief that the will is fraudulent or was established while under the undue influence of another person. A person who challenges the validity of a will must be able to prove the document is invalid, and it may take some extensive court proceedings to get through the will challenge.
• Missing assets: If there are any valuable assets mentioned in the will or other estate planning documents that cannot be found, there may be some significant delays that occur in the probate process. These belongings might have been sold or liquidated, or they may currently be in the possession of another person or entity.
• Estate value disputes: One of the most essential processes associated with probate is the valuation of money, property and other assets in the estate. This is especially critical in determining whether or not there will be any estate taxes owed. Disputes over the value of the estate tend to occur when the estate is close to the threshold for paying estate tax, and can result in delays in the probate process.
• Multiple will copies: The presence of multiple copies of a will can complicate the probate process if there is not a clear statement as to which is the most recent copy and if one copy is intended to supersede the others.
• Allegations of an executor failing to perform their duties: The executor of an estate has a fiduciary duty to manage the assets for the benefit of the estate and the beneficiaries. A failure to live up to that responsibility could result in beneficiaries of the estate filing a lawsuit against that executor, which would, of course, significantly complicate the probate matters. Examples of an executor breaching their fiduciary duty could include them taking the defendants’ assets, failing to file important documentation or failing to distribute assets in accordance with the estate planning documents.

Working with a skilled estate planning attorney allows you to develop an estate plan that considers these issues and helps you avoid them.

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Misha Gill is an Alexandria estate planning attorney for his firm, Speedwell Law, PLLC. If you would like assistance in setting up your own will, living trust, and other estate planning documents, Misha can be reached at (703) 553-2577 or [email protected].

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