7 Common Probate Mistakes and How to Avoid Them

Newsletter | Apr 17, 2020 | Rachel H. Snead

If you’ve recently been named as the Executor or Administrator of a loved one’s estate and are about to enter into the probate estate administration process, make sure that you don’t make one or more of these common mistakes.

  1. Failing to Retain Competent Counsel

Probate can be a complicated and draining process especially when dealing with the loss of a loved one. Trying to do everything on your own during this time of mourning is an excellent way to get yourself into a lot of trouble. Hiring an experienced estate attorney will not only ensure that the administrative process is completed in a timely and appropriate manner, but it will also protect you from making big mistakes that could cost you, the estate, and the beneficiaries.

You may think you’re saving a few bucks by trying to do things on your own, but you could actually be breaching your fiduciary obligations or opening yourself up to personal liability if you aren’t sure what you are doing. Remember, you can save yourself a lot of time, trouble and grief by getting sound advice from the beginning.

2. Procrastinating Before and After Qualification

Obviously, you don’t need to start the probate process within days of losing a loved one, but waiting too long to do so can lead to problems later on. It’s certainly okay to take some time to grieve, but make sure you get things started and under way in a timely manner. As time goes by, taxes add up, creditors become pushier and heirs more impatient. Losing a loved one is devastating and moving forward can seem impossible. However, waiting too long will add pressure and demands from others to your mourning process.

Once you have qualified as executor/administrator, there are certain timelines that come into effect. Beneficiaries must be notified within a certain amount of time from qualification. An Inventory must be filed with the assigned Commissioner of Accounts by or before four months after qualifying. And an accounting of all assets going in and out of the estate must be made by or before 16 months after qualifying.

3. Not keeping Accurate Accounting Records

As executor or administrator, your number one job is to take control of and diligently account for all of the assets in the estate. Make sure you keep accurate records of everything you do, so that when it comes time to pay taxes, make distribution to the heirs, and submit a final accounting to the Commissioner of Accounts, you’re not left scrambling to track down necessary information and records. The more detail-oriented you are, the smoother the whole estate administration process will be.

When preparing an accounting, many executors/administrators fail to use proper schedules; fail to adequately describe receipts and disbursements; lump entries instead of itemizing them; and fail to correctly show carrying and market values, gains, losses, dividends, and interest payment for investments. At the time of settling the estate, all numbers must align and make sense. If not, you might get objections from the heirs or maybe even a judge.

4. Failing to Communicate with the Beneficiaries

Nothing creates more problems than failing to keep the beneficiaries adequately advised, engaged and informed during the probate administration process. If the beneficiaries start to become anxious and/or suspicious, the matter can quickly spin out of control and become highly litigious. Taking the time to keep the beneficiaries informed can save you a lot of time and grief and will go a long ways toward making sure the whole process goes smoothly. Beneficiaries/heirs are also dealing with heightened emotions, and they are dependent on you to let them know what is going on with the estate. This is yet another reason to retain the services of a probate attorney, because your attorney can act as your conduit of information with the beneficiaries/heirs as well as creditors.

5. Distributing Assets Too Soon

As the Executor/Administrator you have the authority to approve creditor claims and pay creditors as well as to distribute assets to intended beneficiaries. Sometimes, however, an estate does not have sufficient assets to pay all claims and honor gifts in a Will. When that is the case, creditors must be prioritized according to law and assets distributed according to that priority. If you fail to follow the law and distribute assets accordingly, you could be held personally liable.

6. Calculating Estate Taxes Incorrectly

All estates are potentially subject to federal gift and estate taxes. Failing to properly calculate federal estate taxes can be a costly mistake. Estate tax returns must also be filed by the Executor on behalf of the estate. This is yet another reason to work with an estate planning attorney to prevent making a mistake that could dramatically diminish the value of the estate that is left for beneficiaries.

7. Failing to Manage Assets Correctly

As the Executor or Personal Representative of an estate, one of the first things you need to do is to secure all assets as soon as possible. This can mean different things depending on the asset in question. For financial accounts, you may just need to close the account; whereas, for real property you may need to physically lock up the property and arrange for its maintenance and upkeep. Additionally, not all estate assets are required to go through probate. As you identify estate assets, make sure you put them in the appropriate category. Common examples of non-probate assets include:

  • Trust assets
  • Proceeds of a life insurance policy
  • Certain types of jointly help property
  • Funds held in certain types of retirement accounts

The best way to avoid making any of the above mistakes is to meet with an experienced estate planning attorney prior to qualifying as executor/administrator of an estate to discuss what steps should be taken to protect yourself and administer the estate correctly and competently. Most firms offer initial consultations for a small fee. If you decide not to meet with an attorney, you should at the very least keep accurate and thorough records of everything, research your responsibilities as executor and what deadlines you must meet, and keep open communication between yourself and any beneficiaries.

Ask Kit Kat: Beavers, Natural Builders

Hook Law Center: Kit Kat, what can you tell us about how much beavers help the environment and other species to survive?

Kit Kat: Well, I have recently learned that beavers are extremely important to the environment. Their efforts at building dams create ecosystems which benefit many other species such as fish, frogs, insects, birds, and otters. This is how they do it. Beavers dam streams with extensive, stick creations that effectively slow water causing it to pool. The added depth of water allows many species like frogs and fish to thrive.

Before European arrival in North America, there were up to 400 million beavers. Then their numbers were decimated by trappers. Their beautiful fur made wonderful hats and coats for northern climates. Only now are we realizing the havoc the lack of these industrious creatures had on the environment. Along with the development of the North America, came deforestation, ditching related to agriculture, and mill dams. Areas which once fertile with abundant wildlife, were now swelling in rains and drying out during periods of drought. Animal diversity declined.

Ecologists, however, are beginning to correct the situation. One example in Howard County, MD illustrates this perfectly. According to Tabby Fique, land manager of the Howard County Conservancy, she now sees muskrats and “more tadpoles than you can shake a stick at”, which she had never seen before on the conservancy’s property. In 2017, the county did a restoration of a stream and a floodplain, joining them. With beavers’ help, the area has been naturally dammed, and previously missing species have returned.

Ecologists are now calling beavers “field medics,” because of the restorative effect they have on environments. They also have many human qualities which are to be admired—they mate for life, yearlings help raise the kits, and they are extremely fastidious about cleaning and maintaining their homes, which are known as lodges. How much more can one ask? (Nancy Lawson, “Welcoming nature’s best architects,” All Animals, March/April/May 2020, p.30)

Rachel H. Snead

757-399-7506 | 252-722-2890
[email protected]

Rachel Snead is an associate attorney with Hook Law practicing primarily in the areas of estate planning, estate and trust administration, guardianship and conservatorships, dispute resolution, and fiduciary litigation. To date, she has litigated and settled over 50 matters. She enjoys the diversity of work that elder law provides, and the challenges presented by litigation just as much as she enjoys helping people with creating their unique estate plan and navigating the complex administration of estates and trusts.

 A graduate of the University of Richmond School of Law and Virginia Commonwealth University, Rachel is admitted to the Virginia State Bar. She is also a member of the Virginia Bar Association (VBA), the Hampton Roads Estate Planning Council, the Virginia Academy of Elder Law Attorneys (VAELA), and the Virginia Trial Lawyers Association (VTLA).

In 2022 she became a licensed health and life insurance agent and attended the prestigious National Trial Advocacy College at the University of Virginia School of Law where she received intensive hands-on advocacy training.

 She has taught multiple continuing legal education courses including, “Getting Started in Elder Law,” “Virginia Probate from Start to Finish,” and “Guardianships and Assisted Decision-Making in Virginia,” and has facilitated sessions for VAELA including “Medicaid & SSI When a Client Owns a Business.” She has also been published on various platforms including T & E Magazine, WealthManagement.com and Age in Action, a quarterly newsletter published by the Virginia Center on Aging and Virginia Department for Aging and Rehabilitative Services.

Practice Areas

  • Estate Planning
  • Estate & Trust Administration
  • Guardianships & Conservatorships
  • Litigation & Dispute Resolution
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