Legal Guide

Top Three Issues That Come Up During Probate

The probate process is intended to make sure the transfer of assets from a deceased person to the heirs and beneficiaries occurs in a fair, legal way, and that all taxes and debts are paid correctly. As long as there is a valid will, most probate cases go smoothly. However, there are times when problems arise during the probate process that must be resolved before the estate can be settled.

Three of the Most Common Problems that Arise During Probate

Executor Issues

The executor of the estate should be named in the will. Executors are usually close relatives of the deceased person, and they are entitled to payment for their services.

Depending on the estate and its complexity, being an executor may involve a lot of work, with duties that include:

  • Paying all debts and taxes
  • Making an inventory of and maintaining all assets
  • Distributing assets to the beneficiaries in accordance with law and the will.

The executor has the fiduciary responsibility to manage assets carefully for the benefit of the estate and beneficiaries. If the executor fails to do so, any heirs or beneficiaries harmed by the breach of duty may be able to sue the executor for breach of fiduciary duty.

Sometimes the named executor does not want to assume the responsibilities involved. If no additional executors have been named, the court will have to appoint another person to administer the estate throughout the probate proceedings.

Problems with Creditors

Before an estate can be settled, all debts and creditors need to be paid. However, creditor claims can be challenged if not legitimate, and the creditors then must prove that the estate actually owes the debt.

Sometimes the creditor is a government entity, such as when California tries to recoup money paid out for Medicaid benefits, or the U.S. government wants extra social security benefits returned. If you feel these claims are not valid, you can argue against them by claiming that taking of assets from the estate would create a hardship.

Problems with the Will's Being Contested

When individuals who feel they were wrongly left out or treated by the will believe that the will isn’t valid, they may contest the will. Contesting a will may lead to costly, time-consuming, and contentious litigation. Challengers need to prove why the deceased’s document is not valid and shouldn’t be enforced.

To be valid, wills must have been drafted correctly. The testator, the person who made the will, must have been of sound mind and not coerced into making provisions, and there must be two adult witnesses signing the will.

 Common reasons for will litigation include:

  • The will was made while the deceased was under undue influence or it was made on the basis of fraud.
  • The will failed to meet the requirements of the California Probate Code.
  • There were improper actions by the executor of the estate.

Get Legal Help for All Issues

To prevent issues from arising in probate, get a probate attorney's help to make sure your will is drafted correctly from the start. If problems do arise, contact the Hackard Law Firm for legal representation to make sure they are resolved.

We offer a free consultation to discuss your individual situation, so call us today at 916-229-6991.

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