Probate

Time Delay

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 final disbursement.
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 estate.

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.