Skip to content

Common Probate Problems during Estate Settlement

    Although probate is often required, it may be a complex and time-consuming process that is subject to a variety of problems. Whether you are an executor, a beneficiary or trying to plan for the future, there are common problems that all parties face during a probate proceeding. In this blog, we will explore common probate problems while discussing possible solutions. By understanding these common probate problems, you can take action to avoid them and ensure a smooth probate court process and an estate tax and estate settlement process.

    Unwilling to Represent

    Understanding What Happens When A Personal Representative Declines the Role

    When a loved one passes away, the responsibility of handling their final affairs like debt and taxes and life insurance often falls to a designated executor. The decedent, through their Will, typically appoints the representative, who manages their assets, pays off debts, and distributes property to beneficiaries. However, the representatives may find themselves unable or unwilling to fulfill the executor role. Renunciation occurs when the representative chooses to give up their authority to manage the decedent’s estate.

    Various reasons may lead a trustee to renounce their role, including personal circumstances, conflicts of interest, or the inability to fulfill the responsibilities of the role. Renunciation is a serious decision that should not be taken lightly as it can have significant consequences for the estate and its beneficiaries. If a representative decides to renounce their role, they must follow the appropriate legal process which includes filing a renunciation form with the court and notifying all interested parties, including the other beneficiaries of the estate. Once the court accepts the renunciation, the personal representative is no longer responsible for managing the estate’s affairs. It is important to note that renunciation does not absolve the trustee of any prior actions or responsibilities they had while serving in their role. Any mistakes or mismanagement during their time as executor can still be subject to legal action or liability.

    Managing Estate Assets in Multiple States

    Challenges Faced by Personal Representatives

    Having estates in multiple states is a common probate problem that can create legal and logistical challenges, especially during the estate settlement process. If a decedent owned property in different states, ancillary probate proceedings are necessary in each state where they held assets.

    For example, let’s say John and Sara were a married couple who lived in Texas. John passed away, and his Will named Sara as his personal representative. As Sara identifies the assets of John’s estate, she finds information indicating John owned mineral rights in Colorado. When probating John’s estate, Sara will likely have to initiate ancillary probate in Colorado to transfer ownership of John’s mineral rights to John’s listed beneficiaries. Ancillary probate ensures property transfer follows the specific laws of the state where the property is located, given the differences in probate processes across states. Our Colorado probate lawyer is well-versed in oil and gas law and probate proceedings so we will able to assist you with your case.

    Expenses Involved in Being a Trustee

    Being an estate representative can be challenging, especially when engaging with an ancillary probate proceeding in another state. Commonly, ancillary probate proceedings face delays due to potential travel expenses, hiring professionals from an unfamiliar state, and state-specific probate process differences.

    Consider the example of John and Sara described above. Sara’s responsibilities pertaining to ancillary probate in Colorado would include identifying the mineral rights owned by John, determining the value of the mineral rights, and transferring ownership of the mineral rights to the beneficiaries of John’s estate. Multiple beneficiaries, conflicting claims to the mineral rights, or disputes over their value can complicate the situation significantly.

    Careful estate planning can help avoid ancillary probate by considering asset distribution after death. For example, John could have created a living trust to hold and manage his assets across multiple states. The creation and funding of a trust can help avoid ancillary probate in non-resident states and simplify the distribution process.

    Read More