The probate process is the process by which assets are transferred after death. Unfortunately, this process can be complicated, time-consuming, and expensive. The American Bar Association reports it takes around six to nine months for probate to be completed, and during the process, many different problems can arise.
The good news is, you can take steps in advance to try to avoid probate problems if you are aware of the issues that are most likely to come up. Here are a few key probate problems that you need to know about so you can make smart estate planning moves to reduce the chances of them occurring with your estate.
1. Your will not being valid
One of the biggest problems that can arise during the probate process is your will being declared invalid. This can happen if a will is contested or if it simply does not meet the requirements to be considered a last will and testament.
If your will is not a valid one or if it is successfully challenged because of issues like you being of unsound mind when you created it or the will being the product of fraud or coercion, then your will is not going to end up being enforced.
In this situation, state intestacy laws would determine who inherits the money or the property that you have left behind for your loved ones. You typically do not want intestacy laws to control what happens to your legacy. While these laws try to ensure that close family members end up inheriting, they are also just generic laws that don’t take your family’s specific needs into account.
To make sure you have control over your legacy, work with an experienced attorney to create a valid last will and testament that would stand up to any challenges.
2. Your chosen executor not wanting to fulfill the role
You need to name someone who is going to be in charge of overseeing the probate process and managing your estate assets. If you do not choose someone, the court will have to appoint an estate administrator, and that person may be different from whoever you would have chosen to do this job.
Unfortunately, being an executor can be a lot of work. If your chosen executor does not want to take on the responsibility or is not able to do so, then you would be left without the person you selected fulfilling this role. To avoid this problem, talk to whoever you are choosing as your executor to see if they are going to be in a position to take on this task.
Of course, circumstances can and do change over time. To make sure you have control over who is in charge of administering your estate and managing your assets, consider naming a backup executor who can jump into the job if your primary first choice executor can’t do it when the time comes.
3. Your will being unclear about who will inherit
Another problem can arise if your will is not clear about who is supposed to inherit money or property. For example, if you mention that your children should inherit, does that include stepchildren if you have them? If you specify that your daughter will inherit your jewelry and your son will inherit your antiques, what happens to valuable antique jewelry — does it go to your son or does it go to your daughter?
You don’t want there to be lasting questions that are raised by your will and that create confusion and potential conflict, so be as clear and as detailed as possible when you create your will.
4. Your will being incomplete
If your will does not address all of your assets, this can also be another problem because it can become unclear who inherits the. money or property you did not provide instructions for. Again, this can create conflict.
To avoid this, you may want to think about including a remainder clause and specifying that anything not specifically addressed by other estate planning documents should go to a specific person of your choosing.
Getting help from an estate planning attorney
The Law Offices of James A. Miller, P.C. can provide the help and support you need to accomplish key estate planning tasks as you get your plan set up and on an ongoing basis. Our legal team can help you to avoid these and other mistakes when you are creating your last will and testament so you can ensure that your loved ones are provided for and your legacy looks the way you would prefer.
Contact our Worcester estate planning lawyers today at (508) 799-8885 or reach out online to schedule a consultation and learn more about the assistance we can offer as you create your estate plan so you can avoid these and other common probate problems that are likely to arise.