Probate is the process used to distribute a deceased person’s estate. The executor of the estate often performs key steps during probate to help ensure assets are distributed to beneficiaries according to the testator’s last wishes.
Ideally, probate is a smooth process that may only last a few months. However, many issues can arise during the probate process that may delay the distribution of assets. Here are a few issues that can occur and how they may be overcome:
1. Will contests and disputes
One common challenge that may occur during the probate process is a dispute with the will. A beneficiary or heir may contest the will on the grounds of undue influence, lack of testamentary capacity or valid execution, for example. This issue could be resolved by communicating with the beneficiary or heir and mediating a resolution.
2. Probate delays
Probate is a lengthy process. There are several challenges that may occur, which could prolong the process for several years. Issues can often be avoided by preparing early and understanding your legal rights.
3. Debts and Taxes
Many people leave behind unresolved debts and taxes. A thorough review of a decedent’s estate can help identify what assets would need to be distributed to resolve any remaining financial obligations. A tax advisor may need to be consulted to help ensure certain debts are resolved correctly.
4. Lost or invalid documents
There are several important documents that are necessary during the probate process, particularly the will. Any lost or invalid documents can delay the probate process. A complete review of important documents may need to be done before beginning probate. Identifying the will early may help avoid delays.
5. Complex estates
It may take more time to review and identify assets when a decedent leaves behind a larger estate. Legal guidance may be necessary to expedite the review process and execute the estate efficiently.
6. Ambiguous language
A will may have included language that could be interpreted in more than one way. Ambiguous language in a will can lead to potential disputes. This issue may be resolved with the use of mediation and by reviewing the decedent’s intentions.
7. Breach of fiduciary duty
A breach of fiduciary duty occurs when the executor fails to perform their duties. A breach can occur if the executor acts in their own interests or fails to act in the best interests of the beneficiaries. The executor can avoid a breach by understanding their legal obligations.
8. Digital assets
Many people are adding to their digital estate, such as crypto and digital media. An inventory of the decedent’s digital estate may be necessary to help ensure digital assets are distributed according to the testator’s last wishes.
Legal guidance may be necessary to resolve any problems that occur during the probate process.