Probate

Probate, also called estate administration, is a legal process whereby a court oversees the distribution of assets left by a decedent’s (deceased person) Last Will and Testament (will), if they have one. Assets are anything a person owns with value, such as real and personal property and cash, for instance.

An individual usually names a family member as the executor or personal representative of his or her estate. Complications arise when the named family member is unfamiliar with the probate process and has not retained an experienced probate attorney to assist with the administration. The probate process includes recording the will, collecting the decedent’s assets, paying the outstanding debts and administration expenses, and distributing the remaining assets to the beneficiaries. Like many areas of Georgia and Virginia Law, the rules that apply to probate are not always clear-cut, and if not followed, can cause penalties to be imposed and lead to lawsuits against the executor/personal representative for breach of fiduciary duty.

Obstructions to Probate

Probably the biggest obstruction to getting the estate probated is disgruntled heirs. Often there are people who are not named in the Last Will and Testament and they believe that they should receive some sort of an inheritance or they think they should receive more than what they get.

Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent’s property than that he or she actually received. Arguments often raised include: the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed, and the decedent did not follow the necessary legal formalities in drafting his or her will. The last reason here is a good reason for people to hire an attorney to draft wills, rather than attempting to do it yourself.

Will challenges most typically arise in blended families. It is a good idea when making a will to consider who might later challenge it, and either include them, or provide a thorough explanation as to why they are being given less than “fair”.

Conclusion

Probate is a complicated and cumbersome process, especially if the executor or personal representative is unfamiliar with the state laws surrounding it. The job of the executor or personal representative is not easy, and the responsibilities associated with the position should not be taken lightly. Given that the laws are always changing and each estate has a different set of requirements, every executor or personal representative should ensure that he or she has a qualified probate attorney to guide them through the legal process. At Elder Law Firm, we can assist you during this difficult time.