For generations of Americans, the probate process has been an unavoidable fact of life that most families have simply had to endure. This was especially true back in the time when trusts were reserved primarily for use by only the wealthiest and most privileged of families, as they tried to avoid taxes and ease the transfer of wealth from one generation to the next. Even today, the probate process continues to be the main process used to settle many estates. Unfortunately, there are many problems that can arise when you are forced to probate a loved one’s estate.
The Time Factor
Even in the best of circumstances, time is always a factor in the probate process. Many estates can take between six months to a year or longer. When estates are especially complicated, there is even the potential for a longer and more drawn-out process. While that might not seem like a major problem, rest assured that it can be. The fact is that many heirs remain in a state of limbo while they wait for this entire process to be completed. That can, in many instances, result in undue hardship for those who must wait for their inheritance.
Some might wonder why the heirs need to wait at all. After all, if the will says that you receive certain assets, why can’t you just take ownership of them as soon as your loved one dies? Part of the answer comes down to a matter of debt. One of the main purposes of probate involves settling all estate debts, and that requires that creditors be notified so that they can levy claims against the estate to get their legitimate debts paid. That can take months. Add to that all the other complex tasks that need to be performed, and it’s easy to see why these processes can last for months or years.
So, how does time cause problems for heirs? That’s simple: when heirs are reliant on the deceased’s income or assets for support, death can cause more than emotional hardship. Even heirs who receive a support allowance from the estate often find that it is not enough to help them maintain their lifestyle while they wait for the process to be completed. Worse, a lengthy and complex probate process can gradually diminish the overall value of the estate and leave heirs with far less than the testator intended.
The Cost Issue
Of course, time is not the only factor that can diminish the value of an estate. There are costs associated with the process, and these expenses can quickly reduce the estate’s worth and the size of any inheritance that heirs receive. There are court costs and lawyers’ fees, as well as executor fees. Many complex estates need the services provided by professionals like appraisers, accountants, tax professionals, and investment advisers. The estate pays for all those services.
The Stress and Strife
Obviously, not every heir reacts to death in the same way. While some allow their grief to temper their concern about things like money, others take the opposite view. Some get greedy and see an opportunity to extract an even larger share of the estate than the decedent directed. Some even go so far as to sue the estate, challenging the will’s provisions. There are even times when heirs direct their complaints against the executor of the will. As you might imagine, all of this can create even more stress and lead to inter-family strife that can tear families apart.
The Legal Pitfalls for Executors
Many problems can arise for executors. Not only can they face anger and scrutiny from the deceased’s heirs, but they can sometimes face legal peril as well. Executors who fail to properly consider the actions that they take or who do an inefficient job recording their activities can find that heirs turn on them quickly. If the executor’s actions lead to asset losses, that executor could find himself being held personally liable for the mistake.
When you’re an executor, the wise thing to do is to consider retaining professional legal counsel to protect your interests. An experienced probate attorney can help to ensure that you fully understand your role and duties, while also assisting you with more complex tasks to help you avoid the types of errors that could prove personally disastrous. These legal pitfalls must always be taken into consideration by anyone who agrees to take on the executor role.
The Inflexibility of it All
Many heirs struggle with the inflexible nature of the probate process. Things happen in order, and that can be frustrating when everything takes longer than expected. And since many people with simple wills often haven’t taken the time to ensure that their assets are organized in a way that ensures that debts can be paid without touching promised inheritances, disappointment can be common. The probate process offers an orderly way to settle the estate, but that same structure can prove problematic for heirs who might wish that things were happening in a different way.
One thing that you can do to spare your heirs these problems is to work now to create a plan that can help their inheritances avoid the probate process. Using trusts, joint tenancy, and other estate planning tools, you can help to ensure that many of your assets remain free of the need from probate so that every heir receives his or her inheritance without delay, value reductions, or controversy.
The probate and estate planning experts at the Law Offices of Mary A. Miller, P.C. understand how your family can be impacted by problems that arise when you probate an estate. We can work with you to develop the sound estate planning strategy you need to ensure that your heirs can receive their inheritance with a minimum of stress and frustration. And if you’re intent on relying on a Last Will and Testament, we can help your executor to more efficiently navigate the probate process to minimize problems. For more information about how we can help you to escape probate problems, contact us online or give us a call at (914) 939-6565 today.
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