Common Probate Problems

Common Probate Problems

In the ideal world, when a loved one passes away, you’d deposit his or her valid will with the court and sail through probate—which would end with all assets quickly distributed according to the person’s wishes.

But problems sometimes creep into the process, adding unexpected issues and delays.

Here are some common monkey wrenches that can turn up during the probate process:

  • Someone challenges the will. Whether they’re cut out entirely or simply feel they’re not getting a fair deal, anyone can sue in court to invalidate the will, alleging that the person wasn’t competent when he or she signed it, or even that a newer will exists and must be found. (Fortunately, getting a judge to go along with this is a longshot.) Although this doesn’t happen, when it does, it can add a great deal of time and money to the process. Sometimes, it pays to negotiate with the person challenging the will to try to avoid a drawn-out court battle.
  • The person named as personal representative either doesn’t want to or is ineligible to serve.  Shepherding an estate through the probate process is time-consuming. Occasionally, the person named as PR decides they don’t want to do it (even though they are compensated from the proceeds of the estate). Even more frequently, especially in South Florida where people have good friends in the state where they used to live, the person named in the will as PR doesn’t fit within Florida guidelines, which says a PR can live outside of Florida only if he or she is a relative. (Read more about the responsibilities of a PR here.) In these cases, the attorney has to go to court to get someone else appointed.
  • The PR has trouble finding all the assets. Whether it’s a safety deposit box no one can locate or questions about whether all bank and stock accounts have been identified, questions can arise about whether the PR has found all of the assets. This is even more likely now that people get statements from banks and brokers emailed to them; previously, the PR could watch the mail to see what comes to the decedent.
  • Not everyone wants to sell the home. The parents leave their home to their three children equally; but only two of them want to sell. This scenario has played out in my practice more times than I can count. While the PR can sign a listing agreement and, with the judge’s okay, sell the home, this is often a tricky emotional situation. (Homestead property in Florida falls outside the probate.) In one recent case, one of the grown children was living in the home and threatened not to move out even if it were sold. These situations require careful negotiations between all parties.
  • The PR doesn’t do his or her job properly. The court calls the PR a “fiduciary,” which means the law requires him or her to carefully manage the financial assets. If other beneficiaries don’t believe the person is doing so, they may challenge the PR and make a damage claim against him or her. It is incumbent on the PR to take this responsibility seriously, and to keep other beneficiaries informed as the process goes on.

If you would like to speak with an experienced probate attorney in South Florida, contact the Law Office of Gary Landau for a FREE legal consultation at 954-979-6566 or by email. Attorney Gary Landau personally returns all calls and emails to him.

What Happens If You Were Planning to Close on a New Home When Hurricane Irma Struck?

Hurricane Irma is gone, but the effects of her wrath are still being felt all over South Florida. One group impacted are people who have an active contract to buy or sell their home.

Even if your closing date was initially a few days before Irma hit, you no doubt found that it was impossible to get homeowner’s insurance. So if you were taking a mortgage, you couldn’t close. That’s because insurance companies freeze new policies once a storm takes aim.

Now that the storm has passed, you’ll need to take certain steps to move forward with the deal.

1) Get a written extension of the contract closing date, if necessary. The standard real estate contract provides for a short delay for after things return to normal, a clause known as “force majeure.” If the delay will last for more than 30 days, either the buyer or seller can cancel the contract without incurring any financial penalties. If you’re still interested in preserving the deal but think the delay in your closing date may be significant, you’ll want your Realtor or attorney to get all sides to agree in writing to extend the date.

2) Have a new, professional inspection. You’ll need to wait for power and water to come back on before you can have the home re-inspected. It’s something that every buyer should absolutely do. Even if the original inspection took place the week before the storm, you’ll want to have it repeated, because the home is obviously at risk for being in a different condition now. (If you’re taking a mortgage, your lender will require that one is done.)

3) Determine who pays for repairs. In many contracts, the seller must return the house to the condition it in when the buyer signed the contract. But sometimes, it’s the buyer who has to pay. You’ll want your lawyer to check out the “risk of loss” section of your contract and let you know who is responsible.

4) Renegotiate if necessary. If the home has been changed by the storm, you may need to renegotiate the price of the sale. However, the house must be in habitable condition before any lender will agree to a mortgage.

5) Stay in touch with your lender. According to local media, many lenders seem to be honoring their interest-rate guarantees that technically expired when your closing date got moved. Still, you’ll want to contact your mortgage broker or lender to see specifically how the storm affected the terms of your loan.

If you would like to speak with an experienced real estate attorney, contact the Law Office of Gary Landau for a FREE legal consultation at 954-979-6566 or by email. Attorney Gary Landau personally returns all calls and emails to him.