When someone with property and assets dies in Texas or Arkansas, it is very likely that their estate will have to go through Probate before anything can be distributed to their beneficiaries. Even if they have taken steps to protect what they can from the Probate process, the Court will probably have to validate their Will and settle claims against the estate before distributing assets. The Probate process can open the door to potential problems that will delay settlement of the estate—and could even change what should have been the outcome. We take a look at what can go wrong during Probate and how a Probate attorney can help heirs and executors meet these challenges head-on.
Problems That Can Arise Out of Probate
Probate is the process by which a person’s death is legally acknowledged, their Will is validated, estate debts are paid, and assets are distributed. It is a public process that allows for creditors and potential heirs to be heard. This can bring trouble out of the woodwork, including the following common problems:
- Executor’s breach of duty. The Executor of the estate—whether they were named by the deceased in the Will or appointed by the Court—has a duty to the estate and its heirs. If the Executor breaches that duty by failing to complete their required tasks, misappropriating funds from the estate, failing to pay debts and taxes, or committing any other mistake, the Probate process will grind to a halt. However, when you have a Probate lawyer involved, these misdeeds can be caught early or prevented altogether.
- Challenges to the validity of the Will. Almost anyone can challenge the validity of a Will during the Probate process; for example, a family member who was not named as an heir, a creditor who is owed money by the deceased, or a charitable organization that believed they were promised a bequeath. This is known as contesting a Will, and there are only a few legitimate reasons for doing so. However, the Court will have to hear arguments and make a ruling on any challenge that is lodged. A Probate lawyer representing your interests will be prepared to counter the challenge.
- Introduction of an alternate Will. If the deceased left behind more than one Will, and interested parties dispute which is the valid document, the Probate court will have to decide which Will to accept and execute. The deceased’s lawyer, a family member, a romantic or business partner, or even a caregiver could present an alternate Will during Probate.
- Claims on the estate. Interested parties who believe they are entitled to something from the estate can present their claim during the Probate process. Determining the validity of their claim can take a considerable amount of the Court’s time, delaying the distribution of assets.
- Missing assets. Part of the Probate process involves an inventory and valuation of property and assets. If valuable items that are listed in the Will or that family members claim to exist cannot be located, Probate will stall out until the issue is resolved.
Whether you are an heir to the estate or you are the named Executor, you can help ensure a smooth Probate by retaining a knowledgeable attorney.
What a Probate Attorney Can Do
Depending on the size of the estate, the relationships among the beneficiaries, the existence of Trusts that bypass the Probate process, and other factors, you might not need to hire a Probate attorney. However, at a time when you might be grieving the loss of a loved one, an attorney can be a great help by:
- Assisting the Executor. The Executor of a large estate has a big job in front of them. If they do not have the time or the skills necessary to do the job according to the law, they could wind up in legal trouble. Hiring a Probate attorney to assist the Executor in settling the estate could be the smartest move you make.
- Managing the estate’s checking account. Entrusting the estate’s checkbook to an Attorney could put the minds of creditors and heirs at ease, avoiding the potential complaints and arguments that could arise if another party is responsible for paying the estate’s bills.
- Paying debts and final bills. Technically the job of the Executor, this important task can be given to the attorney, who will know how to locate bills that need to be paid and how to determine which debts need to be paid and when.
- Filing court documents. Probate won’t even start until all of the proper documents have been filed in the appropriate Court. Your attorney can get the ball rolling while you are taking care of the many tasks that arise after a loved one has passed away.
- Retitling assets in beneficiaries’ names. Even after the estate is settled, an Attorney can be a great help with other legal tasks, such as retitling property or vehicles in the appropriate beneficiary’s name.
- Anything else you need. The greatest benefit to hiring an experienced Probate lawyer is being able to hand over all of the legal tasks associated with your loved one’s passing as you cope with your loss and take care of other necessary details. Your lawyer will do as much or as little as you need them to do.
There is, of course, a cost associated with hiring a Probate attorney, but it often pales in comparison to the potential problems you could face by attempting to go through the Probate process in Texas or Arkansas without one.
