house with a yard

Common Probate Challenges and How to Avoid Them

Probate is the legal process of settling a deceased person’s estate, including distributing their assets and paying off any outstanding debts or taxes. This process can be straightforward and inexpensive with proper preparation and effective communication. However, probate can become complex and expensive once involved in a dispute. 

For this reason, it is crucial to understand common probate problems and how to avoid them. Parties involved in probate should educate themselves and seek legal counsel from a probate laywer when necessary. By staying informed and conducting due diligence, you can understand your probate needs and avoid unnecessary conflict.

Lack of Estate Planning

One of the most common probate problems is the lack of estate planning. In probate, a deceased person’s estate, also called “property,” consists of all assets owned by the decedent at the time of their death. This includes real property, bank accounts, investments, and personal belongings. 

Estate planning is creating an official, legally enforceable plan for how you want your assets to be managed and distributed after your death. Estate plans should be kept up-to-date and include:

  • Legal documents such as a will, trust, or power of attorney.
  • Designated beneficiaries for your assets. 
  • Consider other issues such as taxes, debts, and charitable giving. 

Essentially, estate planning ensures that your assets are distributed according to your wishes and that you minimize tax liability. If anyone passes away without an estate plan, their assets are distributed according to state law, which may not align with their wishes. Thus, creating a comprehensive estate plan that includes a will, trust, or both is essential to avoid future legal challenges or disputes among family members.

Disputes Among Heirs

Another significant challenge that can arise during probate is disputes among heirs. For example, disagreements can arise over how assets are distributed when there are multiple beneficiaries. This can lead to delays and increased legal costs. To avoid this challenge, it is essential to communicate your estate plan to your loved ones and only involve a mediator or attorney if necessary.

Several types of heir disputes can arise during probate. Some of the most common ones include:

  • Disagreements over asset distribution: Multiple beneficiaries might disagree over how assets should be distributed. For example, some heirs may feel entitled to a larger estate share than others, leading to conflicts and legal battles.
  • Disputes over the will’s validity: Heirs may contest the will for several reasons. Some examples include arguing it was signed under duress, that the decedent lacked capacity, or that it was forged. This can lead to lengthy court battles and delays in the probate process.
  • Claims of breach of fiduciary duty: Executors, trustees, and other fiduciaries are legally obligated to act in the estate’s and its beneficiaries’ best interests. If an heir believes that a fiduciary has breached this duty, they may file a lawsuit to hold them accountable. Consulting with a probate lawyer could be helpful in addressing the legal complexities associated with a breach of fiduciary duty in the context of probate.
  • Disputes over executor or trustee fees: Heirs may challenge the fees charged by executors or trustees, arguing that they are excessive or unreasonable. This can lead to conflicts and legal battles concerning compensation.
  • Disagreements over asset valuation: Heirs may disagree over how assets should be valued, mainly if certain assets are challenging to appraise or have appreciated significantly since the decedent’s death. This can lead to disputes over how much each heir is entitled to receive.

It is important to note that these types of disputes can be emotionally charged, complex, and expensive. However, you can proactively avoid them by creating an estate plan, communicating your intentions to your loved ones, and seeking legal aid from a probate lawyer if necessary. 

Complex Assets

Complex assets can be another challenge that complicates the probate process. Complex assets are unique, highly valued, or require specialized knowledge to manage or transfer. Some examples of complex assets include:

  • Business interests: If the deceased owned a business, valuing and distributing its assets and liabilities can be complex. It may require business valuation, tax law, and corporate law expertise.
  • Real estate investments: Real estate can be complex to manage if the deceased owned multiple properties or properties in different states or countries. It can require real estate law, tax law, and property management expertise.
  • Intellectual property: Intellectual property may include patents, trademarks, and copyrights. It can be challenging to value these assets accurately and transfer them to the appropriate beneficiaries.
  • Investment portfolios: Investment portfolios can be complicated to manage if the deceased owned a diverse range of assets, such as stocks, bonds, and mutual funds. It can require investment management, tax law, and estate planning expertise.
  • Retirement accounts: It may be challenging to determine the beneficiaries of retirement accounts, such as 401(k)s and IRAs. Choosing the tax implications of distributing these assets can also be complicated.
  • Artwork and collectibles: These assets can be complex to manage, especially if the items are rare or highly valued. It can require art valuation, tax law, and estate planning expertise.

These disputes can be complex, lengthy, and expensive, especially if you must hire an attorney to help you navigate these assets’ legal and financial intricacies. Be that as it may, you can proactively avoid them by creating a detailed estate plan, appointing unbiased executors, and communicating your intentions to all parties involved.  

Debts and Creditors

Lastly, another common probate problem includes disputes arising over debts and creditors. When a person passes away, their debts do not disappear. Instead, their debts and liabilities become part of their estate and must be paid before any assets can be distributed to the intended beneficiaries. Furthermore, creditor disputes can arise if creditors believe they are owed more than the estate will pay. 

Some of the common disputes related to debts and creditors include:

  • Payment of outstanding debts: These disputes occur when there are not enough assets in the estate to pay off all debts or when creditors assert claims against the estate that the executor or other beneficiaries dispute.
  • Priority of payment: There may be disputes over which creditors should be paid first. For example, secured creditors may have priority over unsecured creditors, and tax liabilities may have priority over other types of debts.
  • Validity of debts: Heirs or beneficiaries may dispute the validity or accuracy of debts claimed by creditors, particularly if the debts were incurred under questionable circumstances or if there are discrepancies in the documentation.
  • Amount of debts owed: Heirs or beneficiaries may dispute the number of debts claimed by creditors, especially if the debts were not adequately documented or if there are other disputes over the value of assets in the estate.
  • Fraudulent transfers: Creditors may also assert claims against the estate if they believe the deceased person fraudulently transferred assets or funds to avoid paying debts or liabilities.

To avoid these types of disputes, it is crucial to properly document all debts and liabilities, communicate with creditors and heirs, and seek legal advice if necessary. Additionally, creating a comprehensive estate plan that includes provisions for debt repayment can help avoid probate disputes related to debts and creditors.

Avoiding Probate Litigation

All in all, probate aims to ensure the smooth distribution of the decedent’s estate according to their wishes. Although avoiding disputes is not guaranteed, there are a few things you can do to minimize the likelihood of probate litigation, including the following:

  • Work with experienced estate planners. These professionals can help you develop a legal plan to preserve, manage, and distribute your assets after death.
  • Work with necessary professionals. Especially when dealing with complex assets, it is beneficial to seek expertise from business valuation experts, real estate attorneys, investment managers, or other related professionals. They help to value and distribute assets to beneficiaries accurately.
  • Create a comprehensive estate plan. This can be done with the help of an estate planner and should include a will, trust, or power of attorney. Be sure to designate beneficiaries for your assets and consider other issues such as taxes, debts, and charitable giving.
  • Consider a no-contest clause for your will. Also called a “penalty clause,” this is intended to discourage beneficiaries from contesting the decedent’s will after their death.
  • Choose your executor wisely. Remember, the executor will be responsible for managing and distributing your estate. Thus, it would be best to choose someone who will deter challenges and uphold your wishes.
  • Communicate your intentions with all parties involved. Expressing your concerns and reasoning with others about your probate choices can effectively deflect costly litigation. Put simply, effective communication and transparency help prevent and resolve disputes.
  • Seek legal aid if necessary. Probate lawyers can walk you through the entire probate process, from initiating the case with the court to the final distribution of assets and discharge of the executor.

Ultimately, staying informed and updating your estate plan regularly can help you effectively navigate and address probate problems. If disputes still arise, you should try to resolve them between parties amicably. 

As a last resort, third-party mediators and probate attorneys are available to help you avoid further litigation. It is important to emphasize that most law offices offer free consultations where you can gain greater insight into the details of your probate issues at no cost.


With the right insight, preparation, and communication, probate can be a straightforward and inexpensive process. However, once involved in a dispute, probate can become challenging, costly, and time-consuming. Thus, it is vital to understand the common probate challenges and how to avoid them. Doing so can help ensure that your loved ones will be cared for and your wishes will be fulfilled according to your will.

Legal Expertise You Can Rely On

Scroll to Top