E265 Late Probate 40 Years After Death

What happens during a late probate, meaning you don’t begin the probate process until many years after death? In a recent case, we probated an estate 40 years after death. This case study shows just a few problems with late probate.

Creditors get impatient

Creditors are usually patient, and they understand that when someone first passes, they won’t get the decedent’s money immediately. Once the creditors know that the estate is opened and the attorney is involved, they sit tight for a bit.

BUT, if it’s been a decade – or four in this case – they understandably get impatient. Creditors need someone to sue to get their money; they can’t sue a dead person. If no one is appointed as executor, then there is no one to drag into court. Eventually, if the heirs don’t probate, then creditors will ask the court to appoint someone (usually the Public Administrator, a court-appointed stranger) to be executor/administrator. The creditors aren’t going to request that an heir be appointed; it will be a court-appointed person who has no relationship to the estate.

Multi-generational probates

If you wait decades to probate, then you will likely end up with multi-generational probate. As time lapses, more people will pass away.

For example, granddad passed away 40 years ago, and no one probated his estate. Eventually, his kids and grandkids will pass away too. Granddad died in 1970 and was survived by five sons at the time. Since then, two of the sons and even some grandsons have passed away.

In this situation, courts will usually require you probate in reverse: starting with the grandsons’ estates, then the sons’, then you will be allowed to probate granddad’s estate. Why? Granddad’s estate requires someone to represent the interest of his five sons. But, if two sons died, there is no one to represent those sons. Someone needs to be appointed for the deceased sons’ estates. But, if those sons had sons (grandsons of the granddad) who passed away, then you can’t set up the two sons’ estates until you set up the grandsons’ estates.

That’s why you have to work backwards: you set up the grandsons’ estates, which allows you to set up the sons’ estates, which allows you to set up granddad’s estate. If this all sounds like a mess – it is.

We get calls from grandkids who haven’t probated; they just keep living in the grandparent’s home after his passing. But now the grandkids want to sell the home and they don’t realize the amount of work ahead of them. A lot can happen in 40 years. In this case, it took a week’s worth of emails and phone calls just to figure out who is who in the family tree.

Tenants get too comfy and won’t leave

If tenants stay in the decedent’s property even for a year, they get very comfortable living there. They are used to staying in the house without rent increases and act as if it is their own place. The tenants generally do not want to leave. This is true of both family members of the decedent and also unrelated tenants.

If the tenants act like this after a year or two, imagine if the tenants have stayed in the house for decades. Because they have been maintaining the home for decades, they get upset when an executor comes in and tells them that they have to pay more rent or leave.

We’ve highlighted three of the problems that can happen if an estate is probated late, especially after 40 years. These are problems that can be fixed but be ready to have a lot of patience through the process.

If you want to learn more about how probate works, check out my book on Amazon, “How Probate Works.”

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