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 a personal representative, 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 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 often falls to a designated personal representative. The personal representative is typically appointed by the decedent, through language in a Will, and is entrusted with the responsibility of managing their assets, paying off debts, and distributing their property to beneficiaries. However, the personal representative may find themselves unable or unwilling to fulfill the personal representative role. Renunciation occurs when the personal representative chooses to give up their authority to manage the decedent’s estate.
There are various reasons that may lead a personal representative 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 personal 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 personal representative of any prior actions or responsibilities they had while serving in their role. Any mistakes or mismanagement during their time as personal representative can still be subject to legal action or liability.
Managing Estate Assets in Multiple States
Challenges Faced by Personal Representatives
Having estate assets in multiple states is a common probate problem that can create legal and logistical challenges. When a decedent owned property in a state other than the state where they resided, ancillary probate proceedings may have to be conducted in each state where the decedent 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 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 an ancillary probate in Colorado to transfer ownership of John’s mineral rights to John’s listed beneficiaries. Since the probate process in each state may differ, ancillary probate is necessary to ensure that the property is transferred according to the specific laws of the state where the property is located. 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.
Being a personal representative for an estate can be challenging, especially when engaging with an ancillary probate proceeding in another state. Between possible travel expenses, increased difficulty hiring professionals from an unfamiliar state, and grappling with state differences in the probate process, it’s common for ancillary probate proceedings to be delayed. 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. This could be particularly complicated if there are multiple beneficiaries, conflicting claims to the mineral rights, or disputes over the value of the mineral rights.
One way to avoid ancillary probate is to plan your estate carefully and consider how your assets will be distributed after your 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 living trust can help avoid ancillary probate in non-resident states and simplify the distribution process.
