Probate is the legal process that occurs after an individual has passed away. During this period of time, the person administering an estate, often called the executor, proves that the will of the deceased is valid and manages the estate’s assets. In addition to settling debts, verifying assets, and determining who the heirs to the estate are, the executor is responsible for officially notifying creditors and relatives that the deceased has passed away. The magnitude of the probate responsibilities makes the process complicated, especially for a person who has never dealt with wills or inheritance before. A person who is settling an estate should beware of these probate traps that can create unnecessary stress for an already grieving family.

Focusing on Tradition When Choosing an Executor

Traditionally, the oldest child of an adult is named the executor of that parent’s estate. People still name their oldest child as an executor, or if no executor is named, it is not unusual for siblings to ask the oldest among them to take over the role. Unfortunately, the oldest child is not always the best choice for administering the estate. Focusing on tradition instead of practicality could lead to major problems, especially if younger siblings or other heirs feel your choice is incapable of handling the duty. The other beneficiaries have the option of going to court to have your chosen executor fired if he or she is not handling the duty correctly.

Inability to Liquidate

A person who is fixated on protecting his or her assets for heirs may overlook the fact that cash may be needed to maintain or keep those assets. When the deceased is a person whose worth is tied up in real estate, tangible property or trusts, the heirs could find themselves facing trouble when it is time to pay taxes, transfer costs, or pay other expenses. If beneficiaries have no cash available and the estate cannot be liquidated without creating serious financial problems, all of the security the will was intended to provide could be lost.

Transferring Assets

After going over assets and debts, some adults decide that transferring assets to their intended heirs prior to their deaths is the best way to save money or avoid some of the inconvenience of probate. Not only can this create financial trouble for the heirs a person was hoping to help, it can also cause major problems for the family. Once assets such as money, homes, and other property are transferred to a beneficiary, there is often no way to get them back or no guarantee that heirs will adhere to a previously-made agreement.

Discussing Probate with an Expert

The best way to protect yourself and your heirs from potential probate traps is to discuss your plans with a skilled attorney. An experienced probate attorney is able to review your assets and help you come up with a reasonable plan that protects you, your assets, and your beneficiaries.  MMZ LAW realizes that estate planning is stressful and are dedicated to helping our clients achieve the peace of mind they deserve. Contact us today at (909) 256-6702 to schedule a FREE consultation so that we can work with you to address all of your estate needs.



341 W. 1st St. Suite 100
Claremont, CA 91711

MARIVEL M. ZIALCITA is the founder of MMZ LAW, A Professional Corporation, where she practices in the areas of Elder Law – Medi-Cal Planning Asset Protection, Trust & Estate, Special Needs, Conservatorship, Trust Administration, & Probate. Ms. Zialcita is a frequent speaker on trust and estate matters and holds memberships in the State Bar of California, Trust and Estate Section, The San Bernardino County Bar Association, Wealth Counsel and Elder Counsel. She currently assists in the pro bono legal services program at the James L. Brulte Senior Center in Rancho Cucamonga, California. She is based in Claremont but assists clients throughout Southern California.

This information is educational information only and not legal advice.