Definition | Administration | Cost | Delay | Public | Emotional
The inordinate amount of time involved in the probate process has already
been mentioned. There is no logical reason for such a protracted system. There
are many examples of probate estates lasting three, four, or five years and
longer. The estate of Mr. Lear, the inventor of the Lear Jet, was in probate
for more than 7 years. The estate of Howard Hughes was in probate for more than
13 years. An estate in Dade County Florida completed its probate in the
fall of 1992 after being open 46 years! In that case, the original testatrix
was quite old when she passed away. She left her estate to friends who were
also elderly. Before the first estate could be closed, the intended
beneficiaries died. These estates had to be probated to determine who the
heirs were before the first estate could be disbursed and closed. If you can
imagine a cascading effect where one person dies leaving money to other people
who die before the first estate can be closed, you can see how an estate can
drag on for a long period of time. However, it is impossible to imagine any
good reason for an estate to remain open for 46 years.
When it comes to probate delay, the top prize goes to the multi- million
dollar estate of Marian Hovey of Boston, who died childless in 1898. As of this
writing, her estate is still in probate. Boston Lawyer Augustus P. Loring
explained that he "inherited the case from his father."
What explanation can there be for such interminable delays in probating some
estates? In many instances probate estates are administered as efficiently and
quickly as the system will allow. Problems arise in the disbursement of
complicated estates having complicated assets and involving complicated
dispositions of property.
- Title Defects
Despite what some might think, often the delays are not
caused by the lawyers involved. Rather, delays are caused by the nature of
the disposition or a particular parcel of property. For example, if an estate
includes a parcel of property that has a defective title, the property cannot
be disbursed from the estate to any intended heirs until the title defect is
corrected. A separate lawsuit must be initiated in order to amend the title.
Clearly, it is not the fault of the probating attorney if a property
included in the decedent's estate has a title defect.
- Legal Claims by the Estate
On other occasions, an estate may not close in a timely
manner because an asset in the estate may not actually be an asset at all.
The asset may be a legal claim by a business the decedent owned. Obviously,
the legal claim would need to be pursued before any assets could be realized.
This is a legal proceeding separate and apart from the probate that would need
to be completed before the estate can be distributed. The decedent may have died
leaving many creditors and many lawsuit claims against him or his assets. Again,
it is not the fault of the probate system that the decedent's estate was
complicated and required separate lawsuits before it could be settled. There
would still be a delay whether this type of estate passed through probate or
through a Living Trust. However, in most cases, even with complicated or problem
property, estates controlled by Living Trusts can be distributed in part prior to
settling the problem asset and attendant expenses. A probate proceeding is much
more difficult. There are, however, provisions under Florida probate code for
interim disbursements of probate assets.
Not long ago the author probated a relatively simple estate. While probating
the estate, all assets were disbursed except for the real property prior
to closing the estate. The heirs received an interim disbursement of all
assets other than the value of the real property. Then, as soon as the real
property in the estate sold, the estate was closed and the heirs received their
- Heirs Contesting the Will
Another cause of delay may be an heir contesting a probate estate.
The heir may be unhappy with the size of his or her bequest and contest
the Will. In this situation, the estate will remain open as long as the Will
contest exists. The attorney probating the estate will be paid to defend the
Will with money from the estate. According to a recent report, 30% of all
Will contests are successful. This percentage includes instances where the
estate simply gives up and negotiates a settlement rather than litigating
until the Judge rules.
The issue most often litigated is one of competency. The Will contest
usually involves the question of competency of the testator (the person
who died). Because of the cost and delay in litigating the issue of
competency, the beneficiaries of a Will often compromise and settle the
claim in order to end the lawsuit and get their money. It is not uncommon in
a Will-based estate for an omitted heir to contest the Will. This usually
happens when the heir or heirs are completely omitted and the entire
proceeds go to charity. There may have been a good reason to omit the
heirs and give all the money to charity. However, because the charity will
not receive the money during the Will contest and the possibility of losing
all the money exists, it is very common for charities to compromise their
claim. The charity will frequently give the contesting heir a portion of
the estate so the estate can be settled.
- Publication of Notice
Under Florida law, an estate will be opened for three months following
the first date of publication. This three-month period allows creditors to
file a claim once they have been alerted by a public notice in the newspaper.
If a creditor fails to file a claim in the probate estate after having
been notified, the creditor will be forever barred from making a future
claim. As an example let us say the decedent owed $2,000 on a hospital
bill. The hospital was notified that an estate was opened but did not
file a claim within three months. The hospital bill would be forfeited
and the hospital would never again be able to make a claim against the
Some estates are kept open because a creditor makes a claim the heirs
feel is unjust. If there is an exceptionally large hospital bill as a
result of the last illness prior to the decedent's death, the heirs may
wish to contest the hospital bill because of its size. This may result
in a lawsuit which can last several years, depending on the complexity
of the case. During this period of time, the probate estate will remain
open. Probate attorneys will be paid to defend the case against the
creditor hospital. Whether this estate was in probate or in a living
Trust, there would still be a delay because of a claim such as this.
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