The death of a loved one is a difficult experience for anyone to navigate. It’s also a process that can become significantly more arduous and painful in the event of a family legal dispute. Without clear consensus regarding the wishes of the deceased, surviving family members may be compelled to deal with thorny legal matters — a situation that can strain relationships even under the best of circumstances.
Should you find yourself in a similar scenario, it’s imperative that you understand the basics of probate law and that you seek experienced counsel to guide you through the process.
To put it simply, probate is the legal process by which estates are settled. A probate court oversees a variety of tasks, including creating a comprehensive estate inventory; determining the validity or invalidity of wills; identifying possible heirs; selecting estate executors and administrators; making financial arrangements (including the settlement of taxes and/or debts) and distributing assets to heirs.
During the process, the court will either confirm the executor selected by the deceased provided that there is no challenge to that fiduciary or in the absence of a will select one person to assume control of the estate, with the goal of satisfying outstanding debts and fairly distributing remaining assets to beneficiaries.
Should the deceased not have a will (this is called dying “intestate”), the prevailing laws of the state determine who inherits any assets. This typically follows the next of kin line: Spouses, children, parents, siblings, cousins etc.
In Connecticut, for example, a surviving spouse is entitled to the entire estate in the absence of a will, should there be no surviving parents or children. If the parents of the deceased are alive, the surviving spouse is entitled to the first $100,000 plus the remaining three-quarters of the estate. If the surviving spouse has children with the deceased, the spouse is entitled to the first $100,000 and splits the rest of the estate with the children.
Should someone die with a will, the probate court may be asked to rule on the will’s validity by an heir. In many states, surviving spouses are granted a certain share of any of the estate’s assets even if a valid will is in place. This share varies from state to state.
The executor or court-appointed administrator is often required to assume a wide variety of tasks (opening bank accounts, filing court documents, negotiating with creditors, paying taxes etc.). Yet because many executors or administrators have little to no experience in such areas, hiring a probate attorney to assist is common practice. It usually takes anywhere from six months to several years to complete the probate process, depending on the complexity of the case and whether there are any challenges.
It should be noted that while some jurisdictions require probate proceedings on certain estates, it is often a process that can be avoided by mutual agreement among heirs. Probate proceedings for contested estates can be expensive and time-consuming. Yet if you believe you are not being treated fairly following the death of a loved one, can’t reach consensus with other heirs, or find yourself operating in the absence of a will, probate may be your best option. It provides neutral third-party appraisal and helps ensure fair settlement of the estate.
Once of the most important things of which to be cognizant is that there are critical differences in the probate process from state to state. Each state has specific requirements about documents that must be filed, rules that must be followed etc. The state of Connecticut publishes this comprehensive user guide that explains the various state probate requirements.
Generally speaking, there are three broad categories of probate proceedings: Informal, unsupervised formal and supervised formal.
You should be aware that there are some states (including Connecticut) that do not have conventional informal probate. However, Connecticut does have a probate exception for smaller estates. It’s also important to understand that if you have any question at all about the validity of a will or the fairness of asset distribution, you should seek legal counsel and perhaps opt for a more formal probate process. While it may take longer, the process is designed to protect the rights of all heirs.
Probate cases are among the most complex and time-consuming in the legal field. The laws governing administration and distribution of estates are often deeply complicated and can vary widely by jurisdiction. As such, it can be almost impossible for a layperson to be sure that the process is being handled equitably.
Additionally, those who have been appointed as an executor or designated as an administrator may find themselves struggling to keep pace with the extensive requirements of the job. Balancing one’s normal life with a whole range of new legal responsibilities — all occurring during a time of great stress and sadness — can quickly become overwhelming. Seeking help from an experienced probate attorney can help relieve this burden.
If you’re in a similar situation — or you’re an heir who feels you’re being treated unfairly — please don’t hesitate to seek legal assistance. Doing so will help protect your rights and ensure that your loved one’s wishes are being duly followed.