The probate process is the process by which an estate is settled and assets are transferred to heirs and beneficiaries after a death. In California, the probate process can take often take over a year due to court congestion. During this time period, unfortunately, plenty of different things can go wrong.
The best way to avoid probate problems is to avoid probate in the first place. This typically involves creating a comprehensive trust-based plan which when properly established and administered allows for avoidance of the court system.
If, however, someone has died with no estate plan or only a will, here are some of the most common problems that could happen during probate, along with some tips on how you can reduce the likelihood of these problems arising when your own will or intestate estate is about to be probated.
1. Common probate process problem: The validity of your will is challenged
One of the first major issues that can arise during probate of a will occurs when someone questions whether your will is legally valid or whether there is a problem with it. The challenge could come from someone who you named in the will, or from someone who has standing because they are a close relative and think they should have been named but weren’t.
Your will could be challenged on any number of grounds, from accusations that you were of unsound mind to claims of procedural issues. The problem is, when the challenge is successful, it is, of course, too late for you to go back in time and fix the issue so you can provide instructions on what should happen to your assets.
You can avoid this by taking care to ensure that everything is done correctly when you make your will and considering the inclusion of a no-contest clause to deter people from challenging the will.
2. Your language is unclear
Unclear language can be a disaster during probate. If the court and your executor do not understand your wishes, they cannot carry out your wishes. You need to make sure that this is not something that happens to you. You can do that by working with an attorney to draft a will that includes simple, plain language. You should describe your assets with the relevant details to make clear which property you are talking about, and be very specific when naming beneficiaries so there is no question as to who you are referring to.
3. The executor doesn’t fulfill their fiduciary duties
When you make your will, you typically name an executor responsible for overseeing the probate process. The job of the executor is to file court paperwork, notify creditors and beneficiaries of the probate proceedings, file any required tax forms, and manage your assets while the probate process is completed.
An executor has to take on a lot of responsibility when they assume this role, including fulfilling their fiduciary duty to heirs and beneficiaries. This is the highest duty that someone can owe under the law. If the executor doesn’t perform their duties properly, it is possible that this could lead to a lawsuit. That can make the probate process more costly and more time-consuming.
Choosing your executor carefully can reduce the chances of there being problems with this person fulfilling their role. Think about who you know can manage your assets, and who will be able to take on a lot of administrative tasks even during a difficult time when they are coping with the aftermath of your death.
4. All of your assets can’t be found
Finally, the last big problem is when assets are not properly identified and transferred during the probate process because they can’t be found. This is one of the easier problems to solve, because you simply need to be organized in providing details about what property you own, where it is kept, or how it is accessed, and what its estimated value or worth is. You can make a list and keep it in a safe deposit box or on a computer file, or keep it safely with a copy of your will. Just be sure to remember to keep it updated as your financial circumstances change and you acquire new assets that will need to be transferred when you’re gone.
Avoid these mistakes during probate
Our firm has asssisted many families through the complex and tedious probate process. We know the stakes are high when it comes to probate going smoothly because you want your loved ones to have the easiest possible time after your death. We’ll work with you to identify the most common issues that arise, and we’ll help you to take the right steps and use the right estate planning documents to reduce the chances that you won’t be able to leave your desired legacy.
If you are facing a probate matter, we can help you make sure the probate process goes as smoothly as possible and to ensure that the legacy of your departed family membe or friend is as secure as it can be.
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