Although hopefully avoided through careful planning and good communication, significant disappointments, delays, and conflicts are not uncommon upon the death of a loved one. Hurt feelings alone are insufficient cause for initiating probate litigation. If circumstances warrant litigation, it’s best to be realistic about possible outcomes.
Who’s In Charge?
Sometimes, serious conflicts can emerge related to the performance of the personal representative overseeing the affairs of the estate of the deceased. A personal representative is typically referred to as an executor, if a will exists, and as an administrator if there is no will. Despite the terminology variations, personal representatives share a common legal duty: they are fiduciaries who must avoid self-interest while acting in the best interest of the estate and its beneficiaries, in accordance with applicable state laws. Given the significant trust placed in personal representatives, they are often required to secure bonds guaranteeing their faithful performance. Colonial Surety helps personal representatives, including executors and administrators, in every state quickly and affordably obtain their bonds. The steps to obtaining a bond with Colonial are easy: get a quote online, fill in the information, and enter a payment method. Print or e-file the bond from anywhere, anytime.
The beneficiaries named in a will, or the heirs in accordance with state intestacy laws (absent a will) may consider a probate litigation case if they believe the personal representative is failing to perform their duties. Experts at The Grossman Law Firm remind us that personal representatives must adhere to the probate process in their state, essentially:
- Using ordinary care and diligence to manage and control the estate;
- Taking possession and control of estate property; and
- Investing the cash in an interest bearing account.
It is important to keep in mind that personal representatives have duties beyond those directly involving beneficiaries or heirs. Giving notice to creditors and resolving debts and claims against the estate must be done before assets can be distributed. By maintaining good communication with beneficiaries and heirs throughout these probate proceedings, personal representatives generally prevent frustrations from escalating into litigation.
When probate litigation is sought, The Grossman Law Firm observes that non-monetary outcomes are the most common goal. For example, litigation can involve seeking the removal or instruction of a personal representative. This could occur related to causes such as:
- The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so.
- The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative
- The personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative.
- Removal is otherwise necessary for protection of the estate or interested persons.
- Any other cause provided by statute
Serving as a personal representative can be more time consuming then relatives and friends understand when accepting the role. For example, if real estate is involved in the estate and needs to be sold, there are of course many steps involved and a personal representative can become overwhelmed. In a case like this, “an order instructing the personal representative to hire a real estate agent, list the property on the multiple listing service, and sell it for a commercially reasonable price” might be helpful in moving toward closure. While monetary outcomes are sometimes possible via probate litigation, there is a high standard for proof that a breach of fiduciary duties has occurred. Probate litigation may also involve contesting a will, though doing so can only be done under specific circumstances. You can learn more about the grounds for contesting a will contesting a will here.
Lawyers remind us that even under ordinary circumstances, it can take up to 18 months to probate an estate (though expedited state probate processes can help). There are forms, deadlines, and to-do lists to attend to when a loved one dies. Even fairly regular tasks like cancelling the utility bills require careful attention. While most families will participate in their state’s probate process upon the death of a loved one, most families (and their designated personal representatives) will avoid the need for probate litigation via good communication and carefully resolved disagreements. Unpaid taxes, debts, escalating conflicts and contested wills are examples of issues that can cause complexities and delays during probate. Find out more about the differences between probate and probate litigation right here.
Across the country, lawyers find that partnering with Colonial Surety Company speeds up the process whenever courts require fiduciary bonds or court bonds.
Colonial’s direct, fully digital, user-friendly system reduces the time, hassle and expense typically associated with antiquated bonding processes. For even more value added service, lawyers are invited to sign up for our complimentary Partnership Account® for Attorneys, This free business service provides user-friendly client management dashboards, enabling attorneys to easily coordinate, view, complete and e-file the court and fiduciary bonds clients need. Increase your efficiency—and lower costs for clients. See for yourself today: The Partnership Account® for Attorneys.
Founded in 1930, Colonial Surety Company is a direct writer of a wide range of bonds and insurance products. Colonial is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA.