How to Avoid Common Probate Mistakes

If you were named as the Executor of the estate in a decedent’s Last Will and Testament, or you have been selected to handle the probate of the estate if the decedent died intestate (without a Will), you must focus on the legal and practical issues that arise following the passing of a loved one. If this is the first time you have administered an estate, you may be unsure of what is required. In addition, your emotional state may make it more likely you will make mistakes during the probate process. To get you started, a Florence probate attorney at Potter Law Firm explains some common probate mistakes so you can avoid making them.

Probate Basics

Most people leave behind an estate when they die that consists of all assets, both tangible and intangible, owned by the decedent at the time of death. Probate is the legal process by which those assets are identified, located, valued, and eventually distributed to the intended beneficiaries and/or legal heirs of the estate.

Common Probate Mistakes

Knowing some of the most common probate mistakes can help you avoid making them if you are responsible for overseeing the probate of an estate. Common probate mistakes include:

• Failing to consider alternatives to formal probate. By far one of the most common mistakes people make when probating an estate is failing to consider if an alternative to formal probate can be used in lieu of formal probate. For small estates, this may be an option. If the estate does qualify for an alternative to formal probate, it can save the estate a considerable amount of money and save the Executor and beneficiaries a considerable amount of time.
• Failing to handle assets correctly. Most first-time Executors are not sure what steps need to be taken and when they need to be taken. Consequently, assets are sometimes not handled properly. As the Executor or Personal Representative of an estate, one of the first things you need to do is to secure all assets as soon as possible. This can mean different things depending on the asset in question. For financial accounts, you may just need to close the account, for example, whereas for real property you may need to physically lock up the property and arrange for its maintenance and upkeep. In addition, you will need to create an inventory of all estate assets and then determine which ones are probate assets and which ones are non-probate assets. All probate assets will also need a date of death value assigned to them.
• Failing to hire an estate planning attorney. If the estate qualifies for a small estate alternative to formal probate you might not need the assistance of an attorney; however, if the estate requires formal probate, it is usually a mistake to not retain the services of an experienced estate planning attorney. Hiring an experienced attorney will dramatically reduce the likelihood that you will make costly mistakes during the probate process.
• Failing to properly handle creditors. All potential creditors of the estate must receive notice of the probate of the estate. Known creditors can be notified personally; however, unknown creditors must receive a notice via publication in a local newspaper. You must then keep the probate open for a statutory period to give creditors the opportunity to file a claim against the estate.
• Failing to calculate gift and estate taxes correctly. All estates are potentially subject to federal gift and estate taxes (in addition to income tax on income received by the estate). Failing to properly calculate estate taxes can be a costly mistake. Estate tax returns must also be filed by the Executor on behalf of the estate. This is yet another reason to work with an estate planning attorney to prevent making a mistake that could dramatically diminish the value of the estate that is left to beneficiaries. 

Contact Florence Probate Attorneys

For more information, please download our FREE estate planning worksheet. If you have questions or concerns about probate and how to avoid mistakes while probating an estate, contact an experienced Florence probate attorney at the Potter Law Firm by calling 859-372-6655 to schedule your appointment. You can also reach our Ashland, Kentucky office at 606-324-5516 and our Charlotte and Huntersville, NC offices at 704-944-3245.