When a person becomes deceased, whether with or without a will, there is a legal proceeding that takes place afterwards known as probate or administration. The way probate works is when a testator dies, the executer, which is usually a family member, is responsible for filing the will to the Surrogate’s Court. The court then validates the authenticity of the will, makes sure all the deceased person's debts are paid, and gives the final ruling on how all remaining assets should be divided and distributed to beneficiaries. In many cases, the person writing the will, will already have established instructions of how they would like their assets distributed. However, there are also cases when a deceased person does not leave a will which leads to a different process known as administration, a proceeding that also takes place in the Surrogate’s Court. In this case, the court starts by appointing an administrator to act as an executor. The administrator is then responsible for handling all claims for the estate and paying off any outstanding debts. Then, the next step is to locate any heirs of the deceased, so that the court can decide how to distribute the remaining assets to them. Probate and Administration can be lengthy processes, oftentimes because many issues arise which delay the process more. Thus, it is important to consider these issues to help try to avoid them.
Top 4 Common Issues In Probate:
1) Executor Refusing Role
When creating a will, you must also name an executor. An executor plays a big role as they have significant responsibilities such as managing your assets, paying off outstanding debts and creditors, and distributing property. Thus, it is important you name an executor you truly trust to fulfill their role and not back out when the time comes for them to act. Many times, people can agree to be an executor but later change their mind. When this type of situation occurs, the court will appoint an administrator to act as an executor which may not be something you want and will delay the probate process. This will also occur when an individual passes away without a will.
2) Will is Contested
A common issue that occurs during probate is dispute between family members and beneficiaries over the validity of the will and if it truly reflects the decedent’s wishes. Many times this can lead to them challenging the will. Some may argue that the decedent made a verbal promise which is not stated in the will or some may even go as far to say the decedent was not in their right mind when creating your will. However, both will require sufficient evidence. Though there is no guarantee no one will challenge your will, there are ways to reduce the chances of these types of disputes occurring. One way is by establishing a no-contest clause, which makes it that if someone does try to challenge your will, they will not receive anything from your estate.
3) Will or Assets Cannot be Found
In order for an executor to initiate a probate proceeding, they need the decedent’s original will and death certificate. Not knowing where the original will is could result in the matter being filed through Administration, where the court will appoint an administrator of their choosing. Similarly, the process can also delay when it is hard to locate your assets such as bank accounts, real estate, important documents, etc. Thus, it is important to let your executor or estate attorney know how to locate such assets and the last will.
4) Not Addressing Creditors Properly
After probate or administration is concluded and the respective letters of testamentary or administration are issued, but before assets are distributed, the deceased person's debts and creditors must be paid off first. However, what commonly occurs is creditors will make costly claims which have to be paid out of your estate and they may not always be accurate. Sometimes, delaying probate or administration can make creditors more aggressive and accumulate more debts and taxes over time. Therefore, it's important for the executor or administrator to keep accurate records to ensure all claims made are valid and payments are made on time. You may also receive help from an attorney or an accountant.
It is no secret that probate and administration can be a complex and costly process, but it doesn't have to be. By hiring a trained probate attorney, you can avoid paying unnecessary fees as well as save plenty of time. To help guide you through the probate or administration process and make it more efficient, contact the Law Office of Inna Fershteyn at (718) 333-2394.