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Myths About Probate

Myths about Probate

You may have heard horror stories about “probate.” Many of them are simply not true. In this post, I discuss the myths about probate why they don’t apply to in the vast majority of estates.

Myth #1: Probate takes years.

Will my estate be “tied up in probate?” I’ve heard this question hundreds of times. The answer, for most people, is an emphatic “No!” Clients have heard or read about horror stories about an estate being tied up in probate for years and years. The truth is that our TrustLawyer Team settles most of our estates within six months to a year.

Myth #2: It Takes Months to Appoint an Executor.

If all of the family members agree, we can normally have the executor appointed within a week or two. This means that you can start gathering information, paying bills and making distributions within a short time of the person’s death.

Myth #3: You Can’t Distribute Assets During Probate.

The executor does not have to wait until the estate is closed to begin making distributions. In my experience, most probate judges and clerks encourage advance distributions because they want to settle estates as quickly as possible. The executor does have to be careful, however. He or she should be absolutely positive that there is enough cash in the estate to pay all claims, expenses and taxes before making distributions.

Reality: A few Cases Take a Long Time to Settle.

A minority of estates are “tied up” for reasons having nothing to do with the probate court system. Most delays are caused by ambiguous will provisions, disputes among family members or estate tax controversies. Here are some examples:

  • Imprecise drafting: A man wrote his own will, in which he provided that “the majority” of his assets were to go to his children. What does “the majority” mean? It required trials in two courts and took over two years to find out. This delay is not caused by the probate process. It could have easily been avoided if the “client” had a lawyer draft his will.
  • Frivolous litigation: I recently worked on an interesting probate litigation. A lawyer presented for probate an unsigned, unwitnessed e-mail from an on-line seller of legal services. The statute clearly provides that a will must be signed in the presence of two witnesses. Despite the lack of a signature and witnesses, the lawyer continued to press his case – all the way up to the Connecticut Appellate Court. We eventually settled it for “nuisance value,” but not until over a year went by and my client had paid me almost $20,000.
  • Tax issues: The federal estate tax return is due nine months from date of death (fifteen months with an extension). The audit process may not even begin for a year or more after the return is filed. In one recent matter, I was engaged to handle the tax issues in the estate of a man who died in 2011. We did not conclude the audit until November of 2014. Once again, the delay in closing the estate had nothing to do with the probate court.

A trust and estate lawyer can help to avoid delay in estate administration.

Let’s start with wills. A client proudly showed me a will he had prepared using software he bought at Staples. He asked me what I thought of it. He beamed when I said that it was excellent, not knowing that I hadn’t finished the sentence. I meant to say that it was excellent for people like me, trust and estate lawyers. These do-it-yourself wills bring us plenty of business. We are the only winners in litigation. A properly planned and drafted will clearly expresses the testator’s wishes. It gives the executor sufficient authority to avoid having to play “Simon Says” with the probate court.

If you think that someone will challenge your will, speak frankly about it with your lawyer. He or she will possibly insert a “no contest” clause into the will. He or she will also be able to obtain evidence while it’s easily available and take other measures to minimize the chance of a successful contest.

When we settle a taxable estate, we make sure that we send the IRS sufficient information. We “pre- audit” the return and look for “audit triggers” and anticipate questions on issues such as valuation and undisclosed gifts.

Questions? Please let me know. Send me an e-mail to