Probate often gets a bad rap, likely because it is associated with two things we dread: death and bureaucratic procedures. Nonetheless, most families will likely experience probate, which is not to be confused with probate litigation. Simply put, probate is the public process of settling the debts of the deceased, and then distributing remaining assets, based on either a will or the laws of intestacy. On the other hand, probate litigation refers to conflicts that may arise and require court intervention. Read on for a helpful overview of probate and tips on avoiding probate litigation.
Probate: A Public Process
Upon death, everything we own is referred to as our estate. If we have made a will, the executor designated in it becomes responsible for filing the will, along with a death certificate, in probate court. After validating the will, the court authorizes the executor to bring the estate to closure, following state protocols to resolve debts before distributing assets to beneficiaries, as detailed in the will. If we have not made a will, the court appoints an administrator, who, similar to an executor, is authorized to settle the affairs of the deceased, but must follow the state laws of intestacy that govern asset distribution. As NOLO explains, the duties of an executor or administrator generally involve:
- proving in court that a deceased person’s will is valid (usually a routine matter)
- identifying and inventorying the deceased person’s property
- having the property appraised
- paying debts and taxes, and
- distributing the remaining property as the will (or state law, if there’s no will) directs.
Although probate typically takes time, involves fees, and requires diligence on the part of the executor or administrator, there is nothing inherently wrong with the process. In fact, probate can be a useful procedure for ensuring fairness and legality as claims are reviewed and assets distributed. Unpaid taxes, debts, conflicts among family members or contested wills are examples of issues that can cause probate complexities and delays.
Probate Bonds Explained
It’s common for courts to require probate bonds, which serve as a guarantee that debts and assets will be properly handled in accordance with state laws and protocols throughout the probate process. Probate bonds are sometimes alternatively referred to as estate, executor, personal representative or administrator bonds. Colonial Surety Company makes it quick and easy to obtain probate bonds for any court in the country, via a user-friendly online service. Simply quote and obtain the required bond, and then instantly download and e-file it with the court.
Easy and Speedy Probate Bonds HERE
Disputes Can Result In Probate Litigation
While the probate litigation cases of celebrities tend to make headline news, the reality is that most families can avoid the need for costly, painful and lengthy probate litigation with careful estate planning, and courageous conversation about any issues that might later prove surprising or disappointing. Estate planning should be done long before capacity declines become a challenge, raising questions about the clarity of decisions. Attorneys at Robbins Estate Law offer this definition of probate litigation:
In general, probate litigation is the court process of handling conflicts that arise during probate proceedings. These conflicts can range from disputes over guardianship to attempts to invalidate a will. Individuals pursue probate litigation most often in the contexts of intestate estates and poorly written or ambiguous last wills. Improper conduct by the executor of an estate is also a common reason to pursue probate litigation.
In the event an individual involved with an estate believes a wrong has been made and petitions the court, probate litigation may ensue. Attorneys at Klenk Law offer these five examples of probate litigation:
- Will Contest: An interested person wishes to challenge the entire Will’s validity.
- Administrator Appointments: If there is no Will and the family cannot agree on who should serve as Administrator. Disputes over who serves as Administrator result in a contested hearing.
- Executor Fee Disputes: When an interested person believes the personal representative has overcharged the estate.
- Formal Accountings: When an interested person believes the Executor is not providing adequate information.
- Spousal Elective Share: When a surviving spouse exercises the right to claim a portion of the estate.
- Guardianship Disputes: Though not technically a Probate Litigation matter, Guardianships are often thought of as probate matters as the same court hears them.
Complimentary Bond Service for Probate Attorneys
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