7 Biggest Mistakes in Probate – And How to Avoid Them

7 Biggest Mistakes in Probate - And How to Avoid Them

When someone dies, their estate goes through a process called probate. This is a legal process that determines who gets the decedent’s property and assets.

Unfortunately, many people make costly mistakes during probate. In this post, we’ll discuss the seven biggest mistakes people make in probate and how to avoid them.

Mistake #1 – Failing to Plan Ahead

The biggest mistake people make when it comes to estate planning is failing to plan. Probate can be a lengthy and costly process, and it’s important to have all of your affairs in order before you die.

If you don’t make a plan, your family will be left to deal with the mess you’ve left behind.

There are a few things you can do to avoid this mistake. First, consult with an experienced probate attorney. They can help you understand the probate process and choose the best course of action for your situation.

Second, take the time to learn about probate and estate planning. There are many resources available online and at your local library. Finally, make a plan! Don’t wait until it’s too late. Write down your wishes and put them in a safe place.

Make sure your family knows where to find them when the time comes. By taking these steps, you can ensure that your estate is handled according to your wishes and save your loved ones a lot of headaches and heartache down the road.

Mistake #2 – Choosing the Wrong Executor

One of the most important decisions you will make when creating your estate plan is choosing an Executor. This is the person who will be responsible for carrying out your final wishes and ensuring that your loved ones are taken care of.

Not just anyone can be an Executor – the role is a big responsibility, and can be quite daunting. You’ll want to choose someone organized and detail-oriented, as it involves dealing with probate, distributing assets, and settling debts.

You should also pick someone who lives close by, as they may need to appear in court on your behalf.

Most importantly, you need to choose someone you trust implicitly. This is not a decision to be taken lightly – take the time to consider all your options before making a decision.

If you are not sure who will be up to the task, you may want to consider appointing a professional trustee instead.

Mistake #3 – Not Having a Will

The most common mistake people make is not having a will. It is a misconception that only wealthy people need to have wills. In reality, anyone who owns a property (in Illinois, assets that are solely owned by the decedent worth more than $100,000 will need to go through probate). 

If you die without a will, your state’s intestacy laws will determine who can act as the representative of your estate. Your assets will be distributed according to state law, which may not be in line with your wishes.

Additionally, if you die without a will, your family will likely have to go through probate, which is a long and expensive process.

Probate can also be avoided if you set up a trust. A trust can be used to hold assets on behalf of another person, and it can be an effective way to avoid probate.

However, trusts can be complex and costly to set up, so they may not be right for everyone. Ultimately, whether or not you need a will depends on your circumstances.

While it’s not pleasant to think about your death, it’s important to take the time to create a will so that your family and loved ones are taken care of according to your wishes.

Mistake #4 – Not Naming an Alternate Executor

As important as it is to name an Executor in your will, it is equally important to name a co-Executor or alternate Executor. Should the primary Executor is unable or unwilling to serve, then the probate court will have to appoint someone to take their place.

The probate court will typically appoint the closest relatives of the deceased, in order of proximity.

For example, if the deceased has no children, the probate court will appoint the deceased’s spouse. If the deceased has no living spouse, the probate court will appoint the deceased’s parents. If the deceased has no living parents, the probate court will appoint the deceased’s siblings. And so on.

Therefore, if you want to be sure that a specific person will serve as your alternate executor, it is best to name that person in your will. By naming an alternate executor in your will, you can help ensure that your estate is handled in a timely and efficient manner.

7 Biggest Mistakes in Probate - And How to Avoid Them

Mistake #5 – Failing to Inventory Assets

When it comes to estate planning, one of the most common mistakes people make is failing to inventory their assets. Many people assume that their loved ones will be able to figure out what they own and how to distribute it, but this is often not the case.

Without a clear inventory of assets, probate can be a long and complicated process. Furthermore, loved ones may end up fighting over who gets what, which can cause lasting damage to relationships.

Therefore, it is essential to take the time to inventory your assets and update your estate plan accordingly. By taking this simple step, you can help your loved ones avoid a lot of headaches down the road.

Mistake #6 – Paying Too Much in Taxes

A mistake you can make when it comes to your finances is paying too much in taxes. There are several ways to minimize your tax liability, but probate is one of the most common. Probate is the process by which your assets are distributed after you die, and it can be a significant source of taxation.

In addition, probate can also be a time-consuming and expensive process. As a result, it is important to plan your estate carefully to minimize probate costs.

There are many ways to do this, such as creating a trust or transferring ownership of your assets to another individual. By taking some time to plan, you can ensure that your loved ones are taken care of after you’re gone and minimize the amount of taxes they will have to pay.

Of course, it is always best to consult with your accountant to determine your best option.

Mistake #7- Not Closing the Estate Quickly Enough

The mistake that some Executors make is failing to work on closing the estate promptly. After a person dies, their debts and assets must be settled through the probate process.

This can be a lengthy and complicated process, but it is important to ensure that it is completed as soon as possible.

Executors who drag their feet can end up incurring late fees, interest charges, and other penalties. In some cases, they may even be held liable for the deceased person’s debts.

The Executor of the estate is responsible for distributing the assets, paying the debts, and filing the final taxes. Working on settling the estate promptly, helps to avoid problems and ensures that the beneficiaries receive their inheritance on time.

More than ever it’s important to work with an experienced attorney to make sure the probate process goes as smoothly and quickly as possible.

By taking care of everything promptly, you can avoid unnecessary delays and expenses.

Final Thoughts:

Probate can be a complicated and time-consuming process, but it is important to ensure that it is completed correctly. By avoiding these seven mistakes, you can help your loved ones settle your estate in a timely and efficient manner.

Furthermore, you can help to minimize the taxes they will have to pay and avoid any potential legal problems.

If you would like more information on the probate process in Illinois, or if you need a reference for a probate attorney.  Please feel free to contact me.  This process can be difficult and overwhelming for families, especially when it comes to selling the deceased’s home.  

That’s where I come in.  My name is Maria Mastrolonardo, I am a Certified Probate Real Estate Specialist who specializes in helping families in Naperville, IL and surrounding areas, navigate the probate process.  I will guide you through every step of the way, and I have the experience and expertise to get the job done quickly and efficiently.

Contact me today at (630) 248-6077 or mmastrolonardo@remax.net to learn more about how I can help you during this difficult time. 

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