When a person dies without leaving a will, it’s said the person died ‘intestate.’ On the other hand, a person who left a will is said to have died ‘testate’. 

Will

A will is a legal document that contains a person's last wishes on how they intend their assets to be dealt with once they die. It contains the names of executors of the will and beneficiaries of the assets.

In the case where beneficiaries are minors, a will names the legal guardians who’ll take care of them until they attain the age of 18. The testator, or person making the will, can also state in their will whether they wish to be buried or cremated when they die.

Grant Of Probate

When a person dies either testate or intestate, they have an estate composed of assets minus liabilities. This estate has to be dealt with legally and financially. This process is called probate, see here.

If a person died intestate, their immediate family will petition the court for Grant of Letters of Administration. However, a Grant of Probate is issued if a person died testate. The purpose of these documents is the same. The only difference is the process of obtaining them. They allow the administrators or executors to deal with the deceased's estate by way of paying taxes and debts.

Intestacy can be a complex matter, especially as differing laws apply across different states’ legal jurisdictions. For example, achieving Michigan interstate success in dealing with an estate could prove difficult: for example, if the deceased person with residence in Michigan owns bank accounts there but owns real estate in Maine because personal property and real estate can be treated differently.

Probate can be an exhausting and costly exercise. The process of obtaining the grant of probate takes approximately six months if there are no complications. Some of the issues may arise during the process and cause delays.  Read below to know more about these issues.

1. A Caveat Is Lodged Against The Estate

A caveat is a notice issued to the effect that specific actions may not be done without informing the person that gave the notice. Sometimes, a person may lodge a caveat to stop the issue of a grant of probate to executors, especially when the validity of a will is questioned.

Sometimes beneficiaries of an estate believe the testator made the will under duress and it’s therefore fraudulent. So, they put a caveat to stop the court from issuing a grant of probate to the executors until the matter is determined.

 A caveat can be renewed after every six months until issues are resolved.

2. Misplaced Or Lost Will

A will is required for the grant of probate to be processed. However, in some instances, a will can’t be located because it’s either misplaced, lost, or the deceased in their lifetime failed to mention where it was kept.

In this instance, the court allows the executioners to file a copy pending the location of the original will. If it can’t be found after a reasonable time, the beneficiaries will deal with the estate of the deceased as if they died intestate.

3. Executor Fails To Fulfil their Obligation

When a will is made, the named executors have the responsibility to administer the estate as set out in the will, upon the death of the testator. While many executors carry out their obligations as required, others find it a huge responsibility to undertake. In such an instance, the court may appoint somebody else in their stead to administer the estate.

4. Named Assets Cannot Be Traced

One of the roles of executors of a will is to identify and collect assets of the estate. Executors may however find themselves in situations where named assets in the will can’t be traced. This may result in costly delays in the transfer of assets to the beneficiaries. This situation can be avoided if the testator guides where the assets can be found. In some instances, such situations become controversial and lead to the contention of a will.

When a person dies without leaving a will, it’s said the person died ‘intestate.’ On the other hand, a person who left a will is said to have died ‘testate.’ 

Will

A will is a legal document that contains a person's last wishes on how they intend their assets to be dealt with once they die. It contains the names of executors of the will and beneficiaries of the assets.

In the case where beneficiaries are minors, a will name the legal guardians who’ll take care of them until they attain the age of 18. The testator, or person making the will, can also state in their will whether they wish to be buried or cremated when they die.

Grant Of Probate

When a person dies, either testate or intestate, they have an estate composed of assets minus liabilities. This estate has to be dealt with legally and financially. This process is called probate; see here.

If a person dies intestate, their immediate family will petition the court for a Grant of Letters of Administration. However, a Grant of Probate is issued if a person died testate. The purpose of these documents is the same. The only difference is the process of obtaining them. They allow the administrators or executors to deal with the deceased's estate by way of paying taxes and debts.

Intestacy can be a complex matter, especially as differing laws apply across different states’ legal jurisdictions. For example, achieving Michigan interstate success in dealing with an estate could prove difficult: for example, if the deceased person with residence in Michigan owns bank accounts there but owns real estate in Maine because personal property and real estate can be treated differently.

Probate can be an exhausting and costly exercise. The process of obtaining the grant of probate takes approximately six months if there are no complications. Some of the issues may arise during the process and cause delays.  Read below to know more about these issues.

1. A Caveat Is Lodged Against The Estate

A caveat is a notice issued to the effect that specific actions may not be done without informing the person that gave the notice. Sometimes, a person may lodge a caveat to stop the issue of a grant of probate to executors, especially when the validity of a will is questioned.

Sometimes beneficiaries of an estate believe the testator made the will under duress, and it’s therefore fraudulent. So, they put a caveat to stop the court from issuing a grant of probate to the executors until the matter is determined.

 A caveat can be renewed after every six months until issues are resolved.

2. Misplaced Or Lost Will

A will is required for the grant of probate to be processed. However, in some instances, a will can’t be located because it’s misplaced, lost, or either the deceased in their lifetime failed to mention where it was kept.

In this instance, the court allows the executioners to file a copy pending the location of the original will. If it can’t be found after a reasonable time, the beneficiaries will deal with the estate of the deceased as if they died intestate.

3. Executor Fails To Fulfil Their Obligation

When a will is made, the named executors have the responsibility to administer the estate as set out in the will upon the death of the testator. While many executors carry out their obligations as required, others find it a huge responsibility to undertake. In such an instance, the court may appoint somebody else in their stead to administer the estate.

4. Named Assets Cannot Be Traced

One of the roles of executors of a will is to identify and collect assets of the estate. Executors may, however, find themselves in situations where named assets in the will can’t be traced. This may result in costly delays in the transfer of assets to the beneficiaries. This situation can be avoided if the testator guides where the assets can be found. In some instances, such situations become controversial and lead to the contention of a will.

5. Will Is Contested

A will may become contentious, and beneficiaries decide to oppose it through litigation or lawsuit. In this case, the court will appoint a special administrator legally known as ‘administrator pendente lite.’ They would administer the estate so that it’s not wasted during the pendency of the suit. The special administrator’s role is only management with no powers to distribute the estate. When the matter is determined, the probate process can then begin.

6. Multiple Wills

A testator may have made multiple wills without revoking the ones made earlier. The wills may even each contain different executors and therefore become contentious. In such an instance, the will with the most current date will supersede any other and will be used to obtain a grant of probate.

7. Death Of An Executor

An executor of a will may die before the estate is fully distributed. In this instance, an administrator is usually appointed to complete the administration of the estate.

In this case, the court will issue a grant known legally as ‘de bonis non administratis.’ This term means ‘of goods not administered.’ The new administrator is known as ‘administrator de bonis non’ who becomes responsible for administering the remaining assets. The said grant can also be used where an executor is removed for wasting the estate or is of unsound mind.

8. Ad Colligenda Bona

This is a limited grant sought when there’s an urgent matter in the estate that needs action and can’t wait for the full process of grant of probate to be completed.

The grant is issued when the grant of probate is still under process. It’s limited to the collection and preservation of the assets of the deceased without the power to distribute.  This grant is usually sought to prevent wastage of the estate. Executors will, in this case, seek orders from the court to pay estate taxes, debts, renew leases, and other related concerns.

How A Lawyer Can Help

Without a lawyer by your side, there’s a higher risk of will mistakes or errors, such as naming the wrong executor, leaving out some assets, not assigning a guardian for children, and not updating the will. You might also forget to consider bills, debts, gifts, income, and estate taxes, which can lessen the assets your beneficiaries should inherit.

Without a valid will, the grand of probate won’t pursue. While you can make your will online by filling out a ready-made will template or form, you might miss some information and leave some blanks empty. These seemingly minor issues can lead to big problems later.

Lawyers specializing in estate planning are highly knowledgeable and trained in wills, trusts, the probate process, and estate-related agreements. Probate expert lawyers can guide clients through the entire probate application process. Moreover, estate planning attorneys can also help apply for letters of administration, a legal process appointing an estate administrator, which applies when a person dies without a will.

Choose an estate planning lawyer in your local area, one with a good track record and recommended by trusted people or organizations. You can also search for more information about your prospective estate planning lawyer online by checking the law firm’s website or talking to previous clients you know.

Final Words

Most issues that arise from a grant of probate are related to wills. Some of these issues include not having a proper witness, forgetting to include some assets, having multiple wills, and appointing executors who are not willing to take up the role.

Writing a will can be a complex venture. You’ll want your will to take care of your loved ones in the best way possible after you’re gone. You’ll also want the executors of your will to be responsible and honest people who will administer your estate faithfully in your absence.

You’ll want your will to be unambiguous with definite, clear terms that can be understood and executed easily. It’s therefore important to seek the help of a solicitor to help you in this undertaking. This is so that all legal and financial aspects are taken into consideration.

Lastly, it would not serve any purpose if you wrote a will and kept it in a place where it can’t be found. Tell at least two trusted people where the will is kept so that when the time comes, it may be retrieved and used for which it was made.