Challenging probate accounts

The process by which an estate is probated is shrouded in a great deal of mystery,  perhaps in part because the process is somewhat antiquated and hasn’t changed in about a century.      If you’re at all concerned about the manner in which an estate is being probated,  it is important to understand that process.

Once a will is “admitted” to probate–in other words,  when the executor is appointed and the will is declared by the court to be the “will of record”–the executor has to go about preparing an “inventory” of the estate.    The inventory constitutes all of the decedent’s personal property, assets and real estate.  The inventory is filed with the court and a copy provided to the heirs.

The most important step in the probate process, however, is the filing of what is known as an “account”.  Think of the account as the balance sheet for the estate;  it sets forth the assets and liabilities and gives heirs and creditors a clear picture of who is proposed to receive distributions from the estate, and in what amounts.    Large estates can have multiple accounts where large sums are proposed to be paid at various points during the estate’s administration.   However,  for most estates the executor usually submits only one account, known generally as the “first and final account”.

The law requires the heirs and credtors who have made claims against the estate to be provided with a complete copy of any account that the executor files with the court.     The court provides a date by which anyone objecting to the account must “appear”,  and then a further date by which any objection to the account must be filed (these deadlines are strictly enforced).   Any objections to the account must identify the specific line-item in the account and the basis for the objection.

From this point on,   objections are treated like a lawsuit.   The objecting party and the executor are entitled to engage in “discovery”–such as requests for documents and depositions–from one another and from third parties.    As a practical matter,   this rarely occurs,  as discovery is quite expensive and amount at issue with objections is typically much less than the cost of discovery and then trial on the objection itself.    Objections most often are made concerning professional or executor’s fees.    These disputes are usually settled,  with the settlement resulting in a revision of the account.

Assuming that there are no objections to the account or that any objections are settled,  the court then schedules a hearing at which the account is confirmed.   Once the 30-day appeal period passes,  distributions consistent with the account are made and the estate is closed.


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