How Could the Probate Process Go Wrong?

There is nothing easy about losing a loved one, but the process of probating a will can potentially make things substantially more stressful, even at the best of times. But when problems arise, it can turn the probate process into a nightmare for everyone involved. Here are just some of the ways that probate can potentially go wrong, resulting in problems for you and your loved ones:

1. You cannot find the will or other testamentary documents
   • A surprisingly common, but very disruptive, problem can occur when essential testamentary documents cannot be found. This could include the last will and testament itself, or it could be documents related to a trust, life insurance policy, retirement account, or other valuable assets. When these documents go missing, it can make it much harder to divide the property up, and can potentially open the estate up to litigation.
2. The last will and testament is out of date
   • Even if you find the necessary documents, you may find out that the will has not been updated in a long time. This could have a number of effects, including granting someone property that the decedent no longer owns, or it could leave out important pieces of property that will then need to be divided up as intestate. It could also wind up granting property to someone the decedent had a poor relationship with, or even grant property to someone who themselves died long before.
3. Someone contests the will
   • Just about any problem that can arise during probate can be exacerbated by someone choosing to contest the will. This brings the entire probate process to a halt while the will is litigated, costing everyone valuable time and money while it is fought out in court. If the will challenge is successful, some or all of the estate could become intestate, while if it fails, you could still lose months or years of time.
4. There is a conflict over who will be the executor
   • Another common source of issues is an argument over who will execute the estate. While an executor is usually named in a person’s will, sometimes the testator will forget to pick someone to execute their estate. Other times, the designated executor will be unavailable, or they will not want to be the executor. And, of course, someone may object to who is selected as an executor, leading to more fighting in the courts.
5. Creditors want to make claims against the estate
   • Finally, it is important to remember that it is not only people named in the will, or family members, who have an interest in a person’s estate. Creditors will also want a piece of the estate, to pay back anything the decedent owed them while they were alive. There are ways to protect your estate from creditors who care more about being paid than respecting your mourning process, but to do that, you should speak to an estate law attorney who can advise you on your options.

    The estate law attorneys at David J. Lorber & Associates, PLLC will thoroughly analyze your estate and work with you to determine the best means of transferring your assets, minimizing taxes, and ensuring your needs are met. For comprehensive estate planning services in New York, call David J. Lorber & Associates, PLLC at (631) 750-0900 or contact us online to schedule a free consultation at our Setauket office.