Why Does Probate Take So Long?

Jun 20, 2016

By Michael P. Coleman, estate planning and elder law attorney of Lantz Law Inc of Dartmouth, Massachusetts.

One of the things that we do here at Lantz Law is to help clients to avoid assets having to go through the probate process. Probate is the process of re-titling an asset, owned by a person in his or her name alone, when that person has passed away. The drawback of having to go through probate is that it can be costly, open to claims of creditors, and, most importantly for purposes of this article, time consuming. Let’s use a fairly typical estate to demonstrate the complications of probate.

John Smith passed away owning a house and a bank account in his name alone. Of course, no one, not even a family member, can walk into the bank and take money out of the account or sell the house because no one but John has “title” to the account or property. If John had a will setting forth who was entitled to the money in the bank or the property, the will would have to be submitted to the probate court by John’s personal representative (formerly known as an executor). The court would then have to issue “letters of authority” giving the personal representative the right to manage the bank account or transfer title to the property. Between the time that the will is submitted to the court and the time that the court issues the letters of authority, a number of things can happen, thereby delaying the process. And, once opened as a court matter, creditors have up to a year to place a claim.

The most typical scenario in which settlement of an estate gets drawn out is when a beneficiary under a will or an heir outside of the will contests the decedent’s wishes. For example, John Smith’s will bequeathed everything to two of his sons, excluding a third son. Of course, when the third son received notice that there were assets being probated, he filed a claim with the probate court, asserting that the two other sons had unduly influenced his father into excluding him from his estate. Whether this has any basis in reality is irrelevant. The court will schedule a hearing to determine whether the brother’s claim has any validity. If the court finds that there is some validity to his claim, it may schedule further hearings and, perhaps, a trial down the road. We all know what happens after a trial…appeals. The process could take years. Even if the will contained a “no-contest clause”, the brother would still have the legal right to contest.

The other reason why probate generally takes at least one year that creditors have one year from the start of the probate process to make a claim against the estate. Usually means that the personal representative is normally hesitant to distribute all the assets in case a creditor comes along in the eleventh month and makes a claim. In some circumstances, the personal representative could be held personally liable to the creditor for the unpaid debt.

All in all, probate is something that everyone should try to avoid, unless court oversight is in some way necessary. There are many ways to avoid the probate process altogether, which we at Lantz Law would be happy discuss with you or someone you know.

Dragon Age : Inquisition recently attempted to incorporate sexuality into their game, another facet of their Spanish mail order brides dating system. You need to brides from japan really understand the habits and culture of Mexican women in order to get closer to the, Here are a few tips that will help you achieve this goal.