By: Barry E. Haimo, Esq.
June 29, 2017
Handling assets after a loved one’s death is never easy. Bumps in the road are inevitable, especially if they had a large or complicated estate. If you are preparing to begin the probate process for a loved one’s estate, know that you may run into the following complications in probate:
Having an Incomplete Plan
What happens if you want to distribute a loved one’s estate, but there is no will? What happens if the will hasn’t been updated in decades?
In the absence of a will, Florida has specific rules about what assets are passed down, and who will receive them after someone’s death. Most laws are straightforward and distribute assets to children, spouses, or blood relatives, depending on the decedent’s marital and family situation. Likewise, Florida has specific rules for appointments of fiduciaries, such as the Personal Representative (“Executor” in other states.)
If you are worried about your own estate plan being “incomplete, there’s some good news. Often, an incomplete plan can be fixed with just a few updates. If you haven’t looked over your will in a few years, or you have recently acquired assets or changed your mind about how you want your assets to be distributed, it may be time to update your will.
Even if your loved one does have a will, you may still run into questions about specific assets or accounts. Also remember that a will must be administered in probate or estate administration. It does not bypass that process. That process opens the door to the emergence of other parties such as creditors.
Unexpected Creditors Come Calling
When the probate process begins, the executor must “open the door” for creditors to file a claim against the estate for a certain period of time. While the personal representative will generally know about most creditors that demand payment, there may be others that are unknown that emerge. Dealing with creditors takes time and money.
Maybe your loved one has a will, but it looks suspicious to some beneficiaries or loved ones. Alternatively, maybe there’s an unhappy beneficiary who believes that the only reason for being treated differently is because of wrongdoing. In this case, the will may be taken to court and challenged.
This not only threatens to rearrange the entire distribution of the will, but also makes the probate process longer and more complicated. A personal representative will likely not be able to continue their administrative duties while the will is being contested.
Contesting the Personal Representative
Maybe the will and estate plan are put together well, but the personal representative is not doing their job. In this case, claims may be filed against the personal representative just like the will can be contested in the probate court. If the state finds that the personal representative is not fulfilling the duties placed upon them, they may be replaced. If the court finds the personal representative acted improperly and has breached his or her fiduciary duty, then he or she will be personally liable for the damages.
Taking on the Probate Process Alone
Probate comes with deadlines and involves a lot of moving parts. The bulk of probate responsibilities rely on the personal representative, and trying to take on this job alone can be a lot of stress. Sometimes, a personal representative cannot fulfill his or her duties because the job is just too much for them to handle, especially in a time of grieving.
If you find yourself in this position, do not be afraid to reach out to others. It is normal to ask for help and build a team to handle probate issues in a timely manner.
Want to learn more about handling probate matters or how to prepare your own estate? Pick up the phone and call an experienced Florida estate planning attorney.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
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