The probate process can often be necessary after a death, although we spend a good deal of our time helping clients avoid this process. During the probate administration the court determines the validity of the will and facilitates the settlement of the estate and the transfer of assets to heirs.
Unfortunately, things can go wrong during probate that can affect the value of the assets left behind for loved ones, as well as the ability of the deceased to leave their desired legacy. Let’s take a look at some of the things that could potentially go wrong during probate, if this process becomes necessary.
1. The chosen personal representative does not want the job
One big issue that could arise early on in the probate process is the person who you named as the personal representative declines the job.
The personal representative of an estate has a lot of responsibilities, including managing assets and filing court paperwork. Not everyone wants to take on this task. Unfortunately, if the person who you selected is unwilling to serve as personal representative, the court may need to appoint a successor. It is possible this would be someone who you would not have necessarily selected on your own.
To make sure this doesn’t happen and derail probate after you pass on, consider talking with the person who you are selecting to serve as your personal representative to ensure that they are able and willing. Of course, people can still change their minds even if they initially agree to fill the role. So, to be prepared in case this occurs, name a backup, or two, as well.
2. The personal representative doesn’t fulfill their fiduciary responsibilities
The next problem that could arise is that the personal representative is not able to fulfill their obligations. personal representatives must act in the best interests of the estate and manage estate assets with the benefit of the heirs in mind. If a personal representative chooses to act to enrich themselves at the expense of the estate, this is a breach of fiduciary duty. While your heirs could take legal action for the breach, this still makes probate more time-consuming and expensive. It is also possible that the assets won’t be fully recovered.
The personal representative could make other mistakes, too, like not filing the right tax forms or not ensuring that creditors and heirs are properly notified. All of these errors can cause complications that delay the settlement of the estate and affect the ability of your loved ones to inherit.
To maximize the chances that things go well during probate, choose someone who is willing and capable of managing your money and property wisely and who you can count on not to commit fraud or otherwise enrich themselves at the expense of you and your heirs.
3. Estate assets can’t be found
Another big issue that commonly arises in probate is that it becomes difficult to find all of the assets that should be part of the probate process. There could be bank or investment accounts that no one can find, for example. This can be a big problem because it can mean assets cannot appropriately be transferred to heirs and loved ones since those assets are not known.
To avoid this issue, make sure that you provide clear instructions for where your accounts are and how to access them. This can be an especially important step to take if, for example, you have many old 401(k) accounts you left with past employers that you never consolidated as you moved from one job to another.
4. The last will and testament is challenged
Finally, another big problem that often tends to come up during probate is someone contesting the will. This could be a close loved one who did not receive the money and property that they expected, or even someone who is named in your will who is not happy with the instructions that you provided.
In these situations, it is possible that the court will decide that your will is not, in fact, valid and should not be enforced as it was written. This can be a huge issue, and one that leads to intestacy laws actually controlling your legacy even though you made the right decision in trying to take control by making an estate plan.
To help make sure that this does not happen, you should ensure you work with an experienced attorney who can help you follow all of the formalities involved in creating a last will and testament and who can help you to reduce the chances that there are problems that affect your ability to control the distribution of your assets.
How to avoid these problems
The best way to avoid these and other legal issues is to avoid probate all together! For assistance in making this possible, or if probate is unavoidable, you should get help from an experienced estate planning attorney. The Edwards Law Firm can provide the assistance you need to ensure that you reduce the chances of problems arising during the probate process. Contact us today to talk with a Jacksonville estate planning attorney who can guide you.
You can give us a call at 904.672.7600 or contact us to schedule a consultation and learn how we can help you to make a legally valid estate plan that reduces the chances of problems during probate and allows you to effectively provide for those who you are leaving behind.
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