What Are the Main Problems Encountered in Probate?
Updated: Apr 25
If you’re planning your estate, or if a relative has passed away and you’re about to go through probate, you are likely wondering: What are the problems I’m likely to encounter in probate? While no two probate cases are alike, there are problems that clients frequently encounter. In this post, I’ll discuss some of the most frequent hiccups that happen during probate.
The case costs too much
The simplest probate case can cost in the neighborhood of $2,000-$3,000. This is a difficult expense for many clients. In some cases, the cost of probate is greater than the value of the property probated.
The case can take a very long time
Even a very simple probate case can take six months to a year to complete. During this time, you may have a lot of paperwork to deal with.
In every probate case, you will have to send notice to all known creditors of the deceased. You’ll also have to publish notice to all creditors in a newspaper in the county where the probate is filed. Even if you don’t know of any creditors, you’ll still have to publish notice to creditors. Some collection agencies and credit companies scan through newspapers around the country looking for published notices on any debtor. If you know of a creditor and don’t mail notice to them, the creditor may ask the court to reopen the case after it’s over so that they can collect.
If any creditor files a claim, you will have to pay this claim. You may have to sell assets of the estate in order to make the payment. You or your attorney will likely have to negotiate with the creditor to pay the claim. If you don’t pay a claim, the creditor can file a lawsuit against the estate. The lawsuit may go to trial where a judge will decide if you have to pay the creditor, and if so, how much. If the amount of the creditor’s claim is greater than the value of the estate, you may have to sell the whole estate in order to satisfy the claim, and the heirs will get nothing.
By far the most difficult problem in probate occurs when someone contests the probate. If someone claims they are an heir, but was left out of the will, there will be a trial to determine whether that person is entitled to a share in the estate.
Contested probates are among the most emotional and bitter types of cases that I have encountered in my practice. These cases can be as nasty as divorce cases. The antagonism in contested probate cases is heightened, I believe, because it usually involves fights among family members, who often have deep personal feelings that are motivating the controversy. After the contest (whether the contest is successful or not) there is often even more hatred among the contestants than there was at the beginning because the litigation intensifies the already bitter feelings.
Fortunately, however, most probates are not contested. If you are about to file a probate and you think that someone may contest it, it’s best for you to work out whatever disagreements you have with that person before you file the case. Even if you don’t like them and would prefer not to give them any money, working out a settlement is usually better than having a fight in court.
Should you plan your estate to try to avoid probate?
Because of the above pitfalls of probate, many clients want to plan their estate to avoid probate. Often, avoiding probate is advisable, and I have helped many clients do so. However, be aware that not every case is the same. While it’s often desirable to avoid probate, some people would not necessarily benefit from avoiding it. Also, some problems that occur during probate can happen even if you avoid probate. (For example, if you have heirs who would contest a probate action, and you don’t file probate, these heirs could sue you anyway.)
In my previous blog posts, “Should You Avoid Probate?” and “How to Know if You Need a Will or a Trust” I discuss some of the reasons to avoid probate, and ways to avoid probate. I also talk about some of the myths surrounding probate.
My relative has passed away. Is there a way to avoid probate?
In some cases, you won’t have to probate your relative’s estate. In other cases, probate may be the only way (or the most efficient way) of distributing the property.
Have further questions? Speak to an attorney.
If you want to know whether you should plan your estate to avoid probate, consult an attorney. Also, for help determining whether you can distribute a relative’s estate without going through probate, discuss your situation with a lawyer.
The Persaud Law Office has helped many people plan their estate, and we’ve also helped many people avoid probate after their loved ones have passed away. If you would like to schedule an appointment, please contact our office.
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