In the immediate aftermath of a loved one’s passing, family members are often overcome with grief and intense emotions. However, there are certain responsibilities that must be attended to in order to properly close the affairs of the deceased.
This process is called probate. While it may seem straightforward, numerous potential probate process complications can quickly arise if not managed properly.
We are Hays Firm, a Chicago based probate and estate administration law firm. Since 2008, we have specialized in helping families navigate the probate process with customized legal advice.
In this blog, we’ll provide essential probate process guidance, highlighting what can go wrong during probate, and when it’s wise to seek legal help for probate issues.
What is Probate?
Probate is the legal process of administering the estate of the deceased and distributing their assets according to their wishes.
Probate does not always involve a will, but if one exists, a critical aspect is establishing the will’s legitimacy.
Interested parties, such as family members, heirs, or beneficiaries, can challenge the legitimacy of the will in probate court. They may argue that the will is out of date, or that changes were made to the will via undue influence from another party.
The probate process provides a legal framework for addressing these challenges and formally approving and administering the will.
When initially setting up a will, the testator (the person who made the will and whose assets are to be distributed) must name an executor. The executor is the one who is responsible for carrying out the will.
The executor has several key responsibilities in the probate process. They must:
- File the Will and Petition with the Probate Court
- Notify creditors of the deceased’s passing
- Notify the beneficiaries
- Take inventory of the deceased’s assets and have them appraised
- Settle the outstanding debts and taxes of the deceased
- Distribute the remaining assets according to the will’s instructions
- Complete a final closure of the estate
If there is no will, the probate process is used by the court to decide how to distribute the deceased’s property.
While probate laws may differ from state to state, in must be opened if assets are greater than $100,000 or if there are real estate properties involved. The probate estate is opened in the county where the deceased lived at the time of their passing.
What Can Go Wrong During Probate: Common Probate Process Complications
Losing a loved one inherently brings out a wide range of emotions, and the probate process has the potential to exacerbate stress and tension among family members.
In order to successfully navigate the probate process, understanding what can go wrong during probate is essential.
These are some of the most common complications that can arise during probate:
Will Contests and Disputes
Easily the most common issue is a contest or dispute of the will, particularly when there are significant assets at play.
It’s not uncommon for family members who believe they should receive a larger portion of the financial or material assets to challenge a will by claiming a lack of mental acuity (known as testamentary capacity), or to assert that another party used undue influence or even fraud to coerce the testator into altering their will.
Improper execution of the will, such as issues with witnessing or signing, or even the existence of multiple differing copies of a will, are other common points of estate dispute in probate.
Receiving assistance from a probate litigation attorney is often required to settle these disputes.
Executor Misconduct
The executor of an estate is bound by their fiduciary duty to act in the best interests of the estate and its beneficiaries. This is a legal obligation, and if breached, can have severe consequences.
Some examples of executor misconduct include:
- Failure to Act diligently in administering the estate, such as failure to pay debts or properly inventory assets.
- Misappropriation of estate funds or assets for personal gains.
- Failure to communicate with the beneficiaries and keep them informed about the status of the estate.
- Improper management of assets, such as selling them below market value or failure to secure property.
Accusations of executor misconduct are serious. They can potentially lead to removal from the role and even personal liability, making a probate attorney a necessity to ensure the process is handled appropriately.
Disputes Among Beneficiaries and Heirs
Disputes often arise between family members or heirs that can quickly escalate into estate disputes in probate.
Common examples include disagreements over asset valuation, such as the fair market value of a property or the value of family heirlooms, as well as challenges to the intended distribution of assets within the will.
Another sensitive issue involves blended families, such as when the deceased has children from multiple marriages, or had recently remarried before death.
These sensitive disputes often require skilled representation from probate litigation attorneys to settle.
Creditor Claims or Insolvent Estates
A key part of the executor’s responsibility is to ensure that the debts of the deceased are paid from the estate’s assets. While the executor is not expected to pay these debts from their own finances, but rather from the estate’s assets, disputes can still arise over the validity of debts.
In some cases the estate may even be insolvent and unable to cover all outstanding debts, administrative costs, and taxes.
These situations require proper handling of creditor notifications, which may require legal help to settle these probate issues.
Missing or Undiscovered Assets
Oftentimes the deceased has assets that are not included in the will, such as bank accounts or investments that were opened long ago and subsequently overlooked.
New forms of digital assets, such as cryptocurrencies and online accounts, may not be easily accessible without the proper credentials or login information.
Even out of state or overseas holdings can require additional legal steps to access and distribute.
Procedural Errors and Delays
The probate court system has strict rules and deadlines that the executor or administrator of an estate must adhere to.
Failing to submit required documents on time, or submitting them with significant errors, can lead to their rejection and cause significant delays in the probate process.
These bureaucratic issues can be frustrating and even costly without legal help for probate issues from an experienced probate court attorney.
How to Successfully Navigate the Probate Process
With so many potential obstacles, navigating the probate process without guidance is risky. But, there are some ways you can mitigate risk.
- Be Proactive in Estate Planning: A comprehensive estate plan is the best defense against probate process complications. A clearly drafted will or trust (which can bypass the probate process entirely) can avoid many of the challenges listed above.
- Retain an Experienced Probate Attorney: If you are entering probate as an executor, working with a qualified probate attorney can streamline the entire process. Their expertise is essential to ensuring compliance with Illinois probate laws and court procedures, minimizing errors in filing the necessary documents, and can even mediate disagreements between family members and preserve the peace.
- Practice Effective Communication: Open and transparent communication with all parties, including family members, beneficiaries, and debtors/creditors is key. Keeping a clear record of how all estate assets, debts, and transactions are handled and when they are settled can minimize disputes and misunderstandings.
- Seek Legal Help for Probate Issues From a Probate Litigation Attorney: When issues escalate and cannot be resolved amicably, a probate litigation attorney is essential. Whether you are contesting a will or defending the estate from a claim, a probate attorney can help you devise an effective legal strategy, negotiate, mediate, and represent you in the courtroom as needed.
Whether you’re tasked with acting as the executor of an estate or looking to challenge a will, the sooner you contact a probate court attorney like those at Hays Firm, the more likely you are to receive a favorable outcome.
Hays Firm: Trusted Chicago Probate Attorneys
Probate is a distinct legal process, with many pitfalls along the way. Without legal help for probate issues, successfully navigating the probate process can feel like tip-toeing through a minefield.
At Hays Firm, we have delivered legal help for probate issues to families in Chicago and throughout Illinois since 2008. Our experienced probate attorneys have an in-depth understanding of Illinois probate laws, and we pride ourselves on our ability to navigate even the most challenging probate process complications with great care.
Don’t wait for something to go wrong during the probate process — get the professional legal help you need to smoothly navigate probate, and ensure a peaceful transfer of assets.
Contact Hays Firm today for a professional consultation, and let our team provide the expert legal help for probate issues you need.
**Disclaimer**
This content of this blog is for general informational purposes only, and does not constitute legal advice. Please consult with a qualified attorney or lawyer for advice specific to your situation.
