Although many states now have expedited probate processes, lengthy delays can still occur. For example, if there is a challenge to the validity of a will, the probate process essentially comes to a halt—no assets can be distributed to the named beneficiaries until the challenge is litigated.
When A Will Is Declared Invalid
When a will exists, the executor named when it was created typically handles the steps of probate, under the supervision of the court. Simply put, probate is the public process of bringing closure to our affairs when we die. Creditors must be notified, debts must be paid, taxes settled—and then remaining assets can be distributed, either to the beneficiaries named in the will, or, absent a will, following the laws of intestate succession. As Frank & Kraft explain:
Another function of the probate process is litigating any challenges to the decedent’s Will. If someone does challenge the validity of the Will by filing a Will contest, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful, the Will is declared invalid, and the state intestate succession laws will be used to probate the estate. If the Will contest is unsuccessful, the probate process continues using the terms of the Will to distribute estate assets.
Given the time, money and heartache involved when probate litigation does occur, it’s reassuring to know that a will cannot be contested merely because someone is unhappy about the decisions it communicates. For example, in Indiana,“A contestant must prove at least one of the following legal grounds on which the Will can be declared invalid: lack of testamentary capacity; undue influence; fraud; or, improper execution.”
Executors and Executor Bonds
Among the important decisions made when a will is created, is the designation of a family member, friend, or professional to administer the estate on behalf of the testator. Generally, this representative is referred to as an executor. An executor has a fiduciary responsibility to act in the best interest of the estate and beneficiaries.That’s why executor bonds have long served as a protection for everyone involved. Sometimes these bonds are specifically requested during probate. Essentially, an executor bond guarantees the faithful performance of the executor in accordance with the law. Colonial Surety Company makes it quick and easy to get an executor bond: get a quote online, fill in the information and enter a payment method. The bond can then be e-filed or printed from anywhere—even your lawyer’s office or zoom room.
When families have the goal of distributing assets to beneficiaries quickly, arranging to gift them without going through probate is possible—with careful planning. Frank & Kraft share this tip: “Convert assets to non-probate assets. Assets gifted in your Will must go through probate whereas non-probate assets bypass probate altogether. Converting assets to non-probate assets when possible, therefore, only makes sense. Common examples of non-probate assets include trust assets, proceeds of a life insurance policy, certain types of jointly held property, and funds held in a “payable on death (POD)” account.”
Lawyers also encourage as much specificity as possible when making a will. Though well-intended, reliance on “the kids” to work things out “later” naturally adds to stress during grief, and can lead to conflict—and even probate litigation. It’s essential to be proactive: putting off plans until we are in decline (or the unexpected happens) leaves the resolution of our affairs to chance. As one estate law expert cautions: “When a Will is drafted near the end of a person’s life, a strong consideration should be whether this individual possessed sufficient mental capacity to execute the document. Further, when a person is in the process of dying, or is suffering from other mental disorders, they may be particularly susceptible to the improper influence of other people which cause them to change their estate plans. As such, whenever a Will is drafted within the last few months of a decedent’s life these issues should be carefully reviewed.”
Estate Planning Law Practice?
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Founded in 1930, Colonial Surety Company is a direct writer of surety 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.