What Can Go Wrong during Probate?
You have likely heard that your estate plan should be structured to avoid probate to the extent possible. Unless you have been through the probate process before, however, you may be wondering why so much estate planning time and effort is devoted to worrying about probate. What is it that can go wrong during probate? To help answer that question, an Indianapolis estate planning attorney at Frank & Kraft discusses what can go wrong during probate and how a comprehensive estate plan can help.
Potential Probate Pitfalls
When you die you will leave behind an estate that consists of all assets, both tangible and intangible, owned by you. One of your primary estate planning goals is likely to ensure that those estate assets are distributed according to your wishes after your death. Probate is the legal process that makes sure your estate assets are identified, valued, and eventually transferred to the new owners. While that may sound like a simple and straightforward objective, there are several things that can go wrong during the probate of an estate, such as:
- Missing original copy of your Will. An original Will must be submitted to the court to initiate the probate process. If the decedent failed to give one to someone for safekeeping, the entire probate process remains on hold, or the estate must be probated as an intestate estate.
- Executor cannot or will not serve. One of the most common estate planning mistakes is to appoint someone as your Executor without giving the matter sufficient thought and/or without asking the proposed Executor if he/she is willing to serve. If the appointed Executor cannot or will not serve the court will have to appoint someone else.
- Miscategorized assets. Not all assets are probate assets. Some assets, such as assets held in a trust, are considered non-probate assets, and are not required to go through the probate process. The Executor could wrongly categorize assets, causing probate assets to be left out of the process or including assets that should have bypassed the process and been distributed to the intended beneficiary immediately.
- Will contest. Will contests are more common than most people realize – and they happen in modest estates as well as valuable estates. A Will contest effectively brings the entire probate process to a halt because the way the estate will eventually be probated will be determined by the outcome of the Will contest.
- The estate lacks sufficient liquid assets. If the decedent did not plan effectively, the estate could lack sufficient liquid assets with which to pay creditors and/or gift and estate taxes. This will cause the need to sell estate assets. That, in turn, could mean that sentimentally valuable family heirlooms are sold.
- The Executor mismanages assets or fails to act. An Executor should have at least a rudimentary knowledge of financial concepts. If he/she doesn’t estate assets could be mismanaged. In addition, the Executor is responsible for overseeing the entire probate process, meaning that he/she must start the process and keep things moving along or the process will never reach a conclusion.
How Estate Planning Can Help
The good news is that you can avoid most probate problems by working closely with an experienced estate planning attorney to create a solid estate plan. Ideally, that plan will include tools and strategies aimed at allowing most of your estate to avoid the probate process entirely. That allows those assets to pass directly to loved ones as well as dramatically diminishing the likelihood of probate problems. A well-designed estate plan will also ensure that those assets that do have to go through probate do so efficiently and effectively.
Contact an Indianapolis Estate Planning Attorney
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about how to avoid problems during the probate of your estate, contact the experienced Indianapolis estate planning attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Paul Kraft is Co-Founder and the senior Principal of Frank & Kraft, one of the leading law firms in Indiana in the area of estate planning as well as business and tax planning.
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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