How Probate Works
April 29, 2021 · Marc Cormier
Common Probate Mistakes and Misconceptions
Probate is a process that most people encounter only once or twice in their lives. That inexperience, combined with grief and the complexity of the legal system, creates predictable patterns of error. Here are the most common mistakes executors make and how to avoid them.
1. Not Having a Plan
Estate planning can feel overwhelming, but failing to plan results in loss of control over asset distribution. Without a will, the court follows state intestacy laws, which may not reflect the decedent's wishes. Money and property that could have gone to specific people or causes may be distributed according to a formula the deceased never chose.
The misconception here is that estate planning is only for the wealthy. It is not. Anyone who owns a home, has dependents, or has specific wishes about their assets needs a plan. A basic will, a power of attorney, and a health care directive are the minimum.
2. Failure to Properly Name Beneficiaries
This is the single most common specific mistake in estate planning. People name a spouse or children as primary beneficiaries but fail to provide suitable backup beneficiaries. If the primary beneficiary predeceases the account holder, or if they die at the same time, the asset may end up in probate court instead of going where it was intended.
Review and update beneficiary designations on all accounts: retirement plans, life insurance policies, bank accounts with payable-on-death provisions, and investment accounts. These designations override the will, so they must be current and accurate.
3. Not Picking Up the Mail
This sounds trivial, but it is not. When someone passes and mail is not collected, it signals to the outside world that the property is unprotected. More importantly, critical financial communications may be missed: tax bills, insurance notices, creditor correspondence, and account statements. Unopened mail at a vacant property is a red flag for both vandals and creditors.
4. Dealing with Creditors
Creditors may not apply pressure early in the probate process, but they become more insistent over time. Assets will not be distributed until creditors are paid. The personal representative must inventory debts, verify their legitimacy, and manage the payment process according to state law. Ignoring creditors does not make them go away; it makes the process longer and more expensive.
5. Settling the Estate
The process can be complicated depending on the number and type of assets and debts, and how well beneficiaries get along. Disagreements between heirs are one of the most common causes of probate delays and additional legal costs. Clear communication, transparent record-keeping, and professional guidance help keep the process moving.
6. Failing to File the Will Promptly in Maryland
Maryland law requires that the original will be filed with the Register of Wills within 30 days of the death, even if the family does not plan to open probate immediately. I have seen families delay filing because they were grieving, only to discover that the delay raised red flags with the court and created friction among beneficiaries who wondered what was happening. File the will within 30 days. It is a simple step that prevents significant problems.
7. Selling Real Estate Before Getting Court Authority
This is one of the most expensive mistakes a personal representative can make in Maryland. You cannot list, market, or sell a probate property until you have been appointed by the court and received your Letters of Administration. If you sign a listing agreement or accept an offer before you have legal authority, the contract may be void, and you could be personally liable for any damages that result. I have seen a personal representative in Montgomery County who accepted an offer, only to have the deal fall apart when the title company discovered the PR did not yet have court authority. The buyers sued, and the PR had to cover the legal fees out of pocket.
8. Neglecting the Property While the Estate Is Open
Vacant probate properties deteriorate faster than anyone expects. A Maryland winter can turn a small roof leak into a major structural repair. A vacant property in Prince George's County was broken into and stripped of copper piping while the family waited for probate to finish. The insurance company denied the claim because the policy had lapsed due to vacancy. The estate lost over $40,000 in value while the family was focused on legal paperwork. Delegate someone to check on the property weekly, maintain the exterior, and keep the utilities running at a minimum level.
Maryland Probate Tip
Maryland Probate Tip
In Maryland, creditors have 6 months from the date of death to file claims against the estate. Do not distribute any assets to beneficiaries until this period has expired and all valid claims have been paid. If you distribute assets early and a creditor later files a valid claim, you could be personally liable for that debt. Open an estate bank account immediately, keep all proceeds separate from your personal funds, and do not make any distributions until the creditor claim period has closed and the court has approved your accounting.
Marc's Advice
Marc's Advice
After working with hundreds of families through probate, the single most preventable mistake I see is inaction. People are so overwhelmed by grief and the complexity of the process that they freeze. They do not file the will, do not secure the property, do not call an attorney. Three months go by and suddenly they are behind on court deadlines, the property has deteriorated, and the family is fighting. The best thing you can do is take one action per day in the first week after the death. One call to a probate attorney. One trip to the Register of Wills. One hour securing the property. Momentum is everything in probate.
If This Were My Family
If This Were My Family
If my own family were dealing with my uncle's estate in Howard County, I would sit everyone down in the first week and say these exact words: "We are going to do this right, and we are going to do it together. No one makes a decision about the house without talking to the group. No one moves anything out of the house without photographing it first. We hire a probate attorney. We hire a probate real estate agent. And we communicate in writing so there is no confusion about who agreed to what." The families who communicate openly and work with professionals from day one settle their estates faster, with less conflict, and with more money for everyone.
If you are navigating probate and want to avoid these common pitfalls, reach out for a consultation. Marc Cormier can help you understand the process and connect you with the right professional resources.
Read the Complete Guide to Probate in Maryland for a full overview of the process and the Personal Representative Guide for detailed duty-by-duty instructions.
Legal Note
If family members disagree about legal rights or the administration of the estate, seek advice from competent legal counsel.