Fleming & Curti, P.L.C. - Probate Process, Usually Quick, Can Sometimes Last For Years

SEPTEMBER 17, 2007 VOLUME 15, NUMBER 12

Probate Process, Usually Quick, Can Sometimes Last For Years

How long does the probate process really take? That question is often asked by clients during the estate planning process, and again by heirs after a death. Myths abound, but the reality is much less exciting. In our experience, the vast majority of probates are concluded within about nine months of initiation, and most are initiated within a month or so of death. Even large, complicated estates requiring estate tax returns (currently that means estates in excess of $2 million) seldom remain open more than a year after a death.

There are exceptions, of course. Fleming & Curti, PLC, has recently concluded a group of about 400 estates which have remained open since the late 1980s because of a long-pending lawsuit over injuries from pollution of Tucson’s groundwater. Then there is the Pennsylvania and Florida case of Max Kravitz, whose estate has been open since 1959.

After Mr. Kravitz’s death in 1958, his brother-in-law (and Philadelphia attorney) Morris Passon was appointed executor by a Pennsylvania probate court. Irrelevant to the subsequent delay, but indicative of the problems to come in handling Mr. Kravitz's estate: his wife Ethel Kravitz was convicted of second-degree murder in his death, and therefore precluded from inheriting from his estate. During her unsuccessful appeals (she eventually died in prison), she implicated Mr. Passon in connection with the death, but the allegations were apparently not pursued.

Mr. Kravitz's will named three other beneficiaries in the event that his wife predeceased him (which was how she was treated by the probate law after her conviction). Included among them was his then sixteen-year-old nephew James Kravitz.

In 1963 Mr. Passon filed a “First and Final Account,” showing total assets of $591,126.15 and a list of the three beneficiaries. Normally Mr. Passon would then have shown the probate court that he had made distributions to those heirs, and the estate would be closed. That never happened.

When Mr. Passon died in 2000, his own executors (now called by the more modern term “personal representatives”) reviewed his assets and found some stocks and an escrow account apparently belonging to Max Kravitz’s estate. They notified Mr. Kravitz’s heirs and distributed what they found, but at least one, nephew James Kravitz, objected that he had not received all he was entitled to from his uncle’s estate.

James Kravitz sued the Estate of Morris Passon, alleging that all he had ever received from his uncle’s estate nearly half a century earlier was about $25,000. The probate court administering Mr. Passon’s estate dismissed the action, ruling that any claim James Kravitz had should have been filed in his uncle’s Pennsylvania probate proceeding years earlier.

The Florida Court of Appeals upheld much of the probate court's dismissal, but disagreed with regard to the allegations of breach of fiduciary duty. The appellate judges returned the case to the probate court for a jury trial, at which James Kravitz would have to show that Mr. Passon continued to receive Kravitz estate checks and hold estate assets without distributing them to the proper recipients. If James Kravitz could prove that Mr. Passon continued to breach his fiduciary duty as executor, the statute of limitations would not have begun to run until his death, and the lawsuit would be timely. The appellate judges also noted that if the Pennsylvania courts should decide that their probate proceeding was effectively closed years ago, James Kravitz’s claim against Morris Passon might well be barred by the statute of limitations. Kravitz v. Levy, September 5, 2007.

Is the Max Kravitz story an indictment of the length of probate proceedings? Quite the contrary, since it shows that an alleged breach of fiduciary duty by an executor may be actionable even if delayed by years—or decades. It is also extremely unusual, since the vast majority of probate estates are resolved in much shorter timeframes, and with much less contention.

As an aside, and with a tip of the editor's hat, it is worth mentioning the excellent "Florida Probate Litigation Blog" maintained by attorney Juan Antunez. Mr. Antunez has written his own analysis of the Kravitz v. Levy case, and (and this is the part that impresses us most) his comments were online within one day of release of the court decision.