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Two reasons estates don't get settled are (1) the survivors are unaware of the need to complete the probate (in we call it a "Succession"); and (2) at least one of the participants is not cooperative.

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It is not uncommon for someone to pass away leaving survivors, and those survivors are unaware of the need to complete the probate of the deceased family member. For example, let's day Dad dies. Dad and Mom had purchased a home 35 years earlier. After Dad dies, Mom decides to continue living in their home. Mom has access to all of the joint bank accounts, and Mom was the designated beneficiary of Dad's IRA. She doesn't even think about seeing a lawyer to complete a Succession. Years later, Mom wants and needs to move into an assisted living facility. She decides to sell the home to help cover the expenses of moving and living in the assisted living facility. She puts the house up for sale, finds a buyer, and signs a purchase agreement. The buyer's title attorney conducts a title examination and discovers the home is still in the names of both Dad and Mom. The buyer's title attorney says, "No sale will take place until Dad's probate is complete!" So the sale is suspended, or perhaps worse, the buyer backs out of the sale.

We often see surviving family members unaware of the need to complete a Succession after their loved one dies. Perhaps the deceased owned a rental property and the family merely continued to collect rent from a tenant but never went through the Succession to get the title transferred. Perhaps the deceased had owned a one-third undivided interest in family property, with her two siblings, and no one bothered to include that as a Succession asset after she died. Perhaps the deceased owned real estate out of state, and the Succession does not transfer any of the real estate owned in the name of the resident.

So there are many circumstances where surviving family members are unaware of the need to complete a Succession after the death of a loved one. And when they finally uncover that need years later, it is more complicated because there is urgency, or perhaps an heir of the deceased passed away in the interim, making more probates necessary.

A second, and perhaps more frustrating, reason estates don't get settled, is when one or more of the participants is uncooperative. Neither the executor acting alone, or a majority of the heirs, can complete a Succession by themselves.

In order to transfer assets of the decease to the heirs, a judge must sign a court order ordering third parties to transfer assets out of the name of the deceased, and into the names of the heirs. A judge will not sign the necessary court order until ALL OF THE PARTIES sign off on the petition requesting the judge to sign the order (this order is referred to as a "Judgment of Possession").

Sometimes a participant will refuse to sign the necessary paperwork - sometimes for valid reasons and sometimes for petty reasons. Nonetheless, one participant refusing to fully cooperation will stop an estate settlement in its tracks.

So what's the Solution? Twofold:

(1) On the planning side, particularly if you anticipate relationship issues among your heirs, establish an estate legal program to eliminate or minimize the potential for problems. Avoid probate. Put the right people in charge with the authority to get things done. Communicate your reasons exactly why you are doing what you are doing.

(2) Once a family member dies, make sure you have very quick and very open communication with all of the parties involved. This early and open communication will build trust among the parties, often eliminating discourse.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais
Estate Planning Attorney
www.RabalaisEstatePlanning.com
Phone: (225) 329-2450