6 minute read

Family Probate Delays: Navigating the Challenges Within

The probate process is complicated enough, and even more so when a member of your family is the source of delays. Learn how to navigate family probate delays.

Mitch Mitchell

Mitch Mitchell, @MitchMitchell

Product Counsel, Legal, Trust & Will

When a loved one passes away, the process of handling their estate through probate is already a complex ordeal. What adds another layer to the already delicate situation is family probate delays—when family members, often inadvertently, complicate and draw out what should be a straightforward process. Unfortunately, this isn't a rare event. As you might imagine, suffering the loss of a loved one brings up a lot of emotions, including strong emotions tied to their property. We'll guide you through what probate delays look like, why they happen, and how to collaborate with your family members to overcome them.

Understanding Family Probate Delays

In the "Dear Quentin" column by financial advice columnist Quentin Fottrell, a reader describes her perplexing problem. Her parents have both passed away, and their financial assets have already been distributed equally between her and her older sister through Beneficiary Designations. Their childhood home and parents' personal belongings must pass through probate before the transfer of ownership can be determined. The reader, however, describes an unfortunate circumstance where her sister and assumed Executor of the estate as the parents' longtime caregiver and Power of Attorney has held up the probate process for several months.

"My sister has been busying herself with many activities that she claims are the reason we can’t get this probate process started now."

The reader then goes on to explain that she is a single mother who could really use the proceeds from being bought out of her half of the deed. She is under financial stress, and with her sister delaying the probate process, she is frustrated and "feeling stuck." She goes on to ask the columnist for advice. (We'll share more about this later.)

What this real scenario paints is a picture that happens in too many families. Not only is the probate process logistically complex, it is also tied up in a complex web of emotions. Oftentimes, an adult child or other close relative of the diseased will assume the role of estate Executor and thus is responsible for filing for probate and moving the process along. Either the Executor or Beneficiaries of the estate can impose roadblocks that prevent the process from moving efficiently or forward. At worst, these frustrations can turn into conflict and family infighting. The big picture here is that delays and conflict in the probate process is costly for everyone; it's a lose-lose situation that should be avoided at all costs.

Common Causes of Probate Delays

Navigating the complex pathways of the probate process (a part of the judicial system) can be even more of a headache when experiencing unexpected delays and challenges. The pain smarts even more when the cause is a family member.

While there are infinite reasons why there could be delays in the probate process, they often boil down to a few common causes:

  • Disagreements over assets

  • Incomplete or incorrect documentation

  • Executor inaction

  • Unresponsive family members

Now let's take a deeper look at each of these causes.

Disagreements over Assets

Family members may not always see eye to eye when it comes to the distribution of assets after a loved one has passed away. Disputes can arise, especially when certain items hold significant monetary or sentimental value. It's not uncommon for some family members to have strong emotional attachments to specific belongings, which can complicate decisions about who should inherit them. This can lead to tension and conflict within families, underscoring the importance of clear communication and possibly legal guidance to navigate these sensitive issues.

Incomplete or Incorrect Documentation

Insufficient documentation can result in misunderstandings or conflicts, and it may also lead to the unexpected discovery of assets. This lack of clarity and record-keeping can complicate processes, leading to inefficiencies and potential legal issues.

Here is na example: A Will, prepared several years earlier, lists a specific real estate property to be passed on to a Beneficiary. However, unbeknownst to the Executor, the property was sold, and the proceeds were reinvested in a different asset. If this change was not accurately reflected and updated in the Will or accompanying documents, significant delays can come out of it.

Proper documentation serves as a roadmap for transactions and interactions, ensuring that all parties are aware of their rights and obligations. Without it, navigating the complexities of agreements and ownership can become significantly more challenging.

Executor Inaction

An Executor who does not promptly or adequately fulfill their duties poses a significant risk to the probate process. For instance, an Executor who delays in submitting the Will to the probate court or fails to keep accurate records of the estate’s assets can create bottlenecks that extend the duration of probate unnecessarily. We saw an exact example of this through the "Dear Quentin" column discussed earlier.

The Executor's role is critical, as they are tasked with collecting and inventorying the deceased's assets, paying off bills and taxes, and then distributing what remains according to the Will. Any lapse in these responsibilities can lead to considerable probate delays.

Unresponsive Family Members

Unresponsive family members can also complicate the probate process. For example, consider a scenario where a Beneficiary cannot be reached to sign essential documents or to receive their inheritance. This not only stalls the distribution phase but may also require additional legal proceedings to move forward, such as seeking court permission to distribute the estate without the missing Beneficiary’s consent. Such scenarios highlight the importance of accurate and up-to-date contact information for all involved parties.

The Impact of Family Probate Delays

You may be able to start imagining some of the impacts of probate delays caused by family members. Yes, there are legal impacts, but the effects are far-reaching. They can affect not just the probate process but also finances, family ties, and thus the mental health and wellbeing of everyone involved.

  • Financial Implications: Each day that passes adds to the costs associated with probate, which include legal fees, asset management fees, and other related expenses. These costs accumulate over time, significantly diminishing the estate's overall value. In certain situations, the financial burden can become so overwhelming that assets within the estate must be liquidated to cover these costs. This can complicate the distribution of the estate and may not align with the decedent's original wishes.

  • Emotional Toll on Families: Navigating the probate process is often an emotionally charged journey for the bereaved. The inherent delays and bureaucratic hurdles can unnecessarily prolong the grieving period, adding to the emotional strain experienced by family members. Moreover, the stress of managing these legal obligations often inflames existing familial tensions or creates new conflicts, further compounding the emotional distress during an already difficult time.

  • Legal Complications: As the probate process spans over time, the likelihood of encountering legal challenges increases. This is particularly true in cases where the estate's assets are not distributed promptly or evenly, which can lead to disputes among potential heirs. Legal challenges not only prolong the process but also drain the estate's resources. The complexity of these disputes can result in a scenario where the final distribution of assets bears little resemblance to the deceased's original intentions, leading to dissatisfaction and contention among the heirs.

What to Do When Faced with Family Probate Delays

Dealing with family probate delays requires a careful and considerate approach. Here are some strategies you can employ to minimize disruptions as much as possible:

1. Open and Clear Communication: Encouraging open lines of communication can help alleviate misunderstandings or clarify the intentions of the deceased. Set regular meetings or check-ins to keep everyone informed of the process and any updates.

2. Mediation: Seeking external mediation can be a valuable tool when family members are at a stand-still. A neutral third party can guide the conversation and help feuding parties reach an agreement.

3. Educate and Empower Executors: Executors should understand their responsibilities before probate begins. Family members can help educate and support them to ensure they feel empowered to carry out their duties.

4. Petition the court: In extreme cases where disputes cannot be resolved, it may be necessary to petition the court for a resolution. However, this should be seen as a last resort and can significantly increase the time and costs involved in probate.

5. Contesting the Will: If there are concerns about the validity of the Will, parties can contest it. However, this should also be seen as a last resort and requires substantial evidence to prove any wrongdoing or invalidity. If you think this action may become necessary, be sure to read our guide on the topic.

6. Alternative Dispute Resolution: In some situations, alternative dispute resolution methods such as arbitration or collaborative law can be used to resolve probate conflicts outside of court.

7. Seek Legal Counsel: Consulting with a lawyer experienced in probate and estate planning can provide valuable guidance and legal advice when faced with family probate delays. They may also suggest strategies to minimize conflict and expedite the process.

Note that this list is not exhaustive, but includes some tried and true tips. Items 1 through 3 should always be tried first. Items 4 through 7 require legal action and should only be escalated to this stage when other avenues have been exhausted.

Navigate Probate with Confidence, the Trust & Will Way

Family probate delays are not just legal or financial challenges—they're deeply personal and emotional. By addressing these delays head-on with clear communication, proactive planning, and, when necessary, reasonable legal strategies, families can protect the legacy of their loved ones and maintain their bonds.

If you're currently facing these challenges, know that support and resolution are within reach. Ultimately, the goal is to honor the memory of those who have passed by managing their estates efficiently and with the respect they deserve.

Wish you had a way to navigate probate with more confidence? At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help.  Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.

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