Is Your Probate Attorney Delaying Your Case? 8 Warning Signs

First: Distinguish Court Delays from Attorney Delays

Before concluding your attorney is causing delay, ask one clarifying question: 'Can you show me what is specifically waiting on the court, and what is specifically waiting on us?' A good attorney can answer this precisely — naming specific documents, hearing dates, or pending applications. An evasive or vague answer to this question is itself a warning sign.

| ContentWhat It Looks LikeContentHow to Verify** | | --- | --- | --- | | Court delay (legitimate) | Attorney says: 'We filed the petition on March 1. The court scheduled the hearing for April 28 — that's the earliest available date.' OR 'The IRS has had the 706 for 8 months and we're still waiting for the closing letter.' | Ask for the court filing stamp, the scheduled hearing notice, or the IRS case number to verify filing date | | Attorney delay (avoidable) | Attorney says: 'We're just waiting for things to move forward.' OR 'These things take time.' OR nothing — no response to inquiries for weeks. | Ask specifically: 'What document or action is currently outstanding? Who is responsible for completing it? What is the target date?' | | Executor delay (avoidable, not attorney's fault) | Attorney says: 'I've asked your co-executor for the investment account statements three times. They haven't responded.' | Verify with both parties; executor failure to cooperate with attorney is a separate problem (see PG-8 on removal) |

Warning Sign 1: Unexplained Gaps in Activity

In a well-managed probate, there should be identifiable activity every 4–6 weeks — a filing made, a hearing attended, a creditor claim responded to, documents gathered, or correspondence sent. If you request a list of actions taken in the past 90 days and the answer is 'we're waiting on the court' for an extended period without a specific pending court item, the gap may indicate neglect.

How to Check Activity Yourself

In many states, probate court dockets are publicly searchable online. Search for your estate's case number at your county's court portal (CA: courts.ca.gov case search; NY: eCourts; FL: county clerk portals; IL: circuit court efiling). The docket will show every filing made in the case and its date. A long gap in docket activity without a pending court date is objective evidence of inaction.

Warning Sign 2: Vague Status Updates Without Specifics

'Things are progressing.' 'We're waiting on some things to clear.' 'It's moving along.' These responses, when given repeatedly over multiple months, indicate either that the attorney does not know the status of your case or is avoiding a more direct answer. A competent probate attorney should be able to give you a specific status at any point: what was last filed, what is currently pending, what the next action item is, and its target date.

The Specificity Test

Ask: 'Can you give me today's status in three specifics: what was the last action taken on our case, what is currently pending, and what is the next action item with its expected date?' If the answer is vague or deferred, document your question and the response in writing (email) and send it again.

Warning Sign 3: Missing Statutory Deadlines

Probate has several hard statutory deadlines. Missing these is not only a sign of poor case management — it can cause real harm to the estate (exposure to additional creditor claims, court sanctions, interest penalties). Key deadlines that should never be missed:

| ContentConsequence of MissingContentWho Is Responsible** | | --- | --- | --- | | Will filing deadline (FL: 10 days; TX: 4 years; CA: no hard deadline but promptness required) | Florida and Texas: criminal misdemeanor for custodian; loss of inheritance rights possible in Texas | Custodian of original will; attorney advises | | Notice to Creditors publication | Delays when creditor period expires; creditors who are not notified may have extended time to file claims | Attorney's responsibility to arrange immediately after Letters issued | | Inventory filing (CA: 4 months; varies by state) | Court sanctions; judge may issue order to show cause; delays final distribution | Executor to gather information; attorney to file | | Federal income tax return for decedent (April 15) | IRS late filing penalties + interest; complications for estate | Attorney or CPA advises; executor responsible for paying | | Form 706 (9 months from death if required) | IRS late filing penalties; late interest; loss of portability election if not filed | Estate attorney or CPA; executor responsible | | Portability election (Form 706 for portability: 9 months, or Rev. Proc. 2022-32 late election up to 5 years) | Missing portability can cost surviving spouse hundreds of thousands in estate tax when they die | Attorney must advise on portability — if not raised, it is a serious oversight |

Warning Sign 4: Pattern of Unnecessary Continuances

A continuance is a court-approved postponement of a hearing. Some continuances are legitimately necessary — a key party is unavailable, documents are not yet ready, or a settlement is being negotiated. But a pattern of continuances on a straightforward estate — three or four postponements of a routine hearing — suggests poor preparation, scheduling failures, or deliberate delay.

Ask your attorney: 'Why was this hearing continued? What would have needed to be in place to proceed on the original date?' The answer should identify a specific, concrete obstacle — not a vague 'we weren't ready yet.'

Warning Sign 5: No Written Confirmation of Key Decisions

Every significant decision in probate — accepting or rejecting a creditor claim, approving a sale price, agreeing to an executor fee, consenting to attorney fees — should be confirmed in writing. If your attorney is communicating exclusively by phone and there is no written trail of decisions made, you have limited recourse if something goes wrong or you later disagree about what was agreed.

Protect Yourself: Create Your Own Written Record

• After every phone call with your attorney, send a brief follow-up email: 'Per our call today, I understand that [X decision was made / Y action will be taken by Z date]. Please let me know if I have that wrong.'
• This creates a contemporaneous record, gives the attorney an opportunity to correct misunderstandings, and documents the timeline of communications if you later need to file a complaint or switch attorneys.
• Save all emails, letters, and text messages related to the estate in a dedicated folder.
• If your attorney never confirms anything in writing despite your follow-up emails, that pattern itself is a warning sign.

Warning Sign 6: Unable to Answer Basic Status Questions

Your attorney should be able to answer these questions without hesitation or research:

• When was the Inventory filed? What did it show as total estate value?
• When does the creditor period close?
• Have all creditor claims been received and reviewed?
• Has the estate tax return been filed? If not, is an extension in place?
• What is the next scheduled court date and what is it for?
• What is currently preventing final distribution?

If your attorney cannot answer these questions accurately or needs to 'look it up and get back to you' for multiple consecutive months, the case may not be receiving adequate attention.

Warning Sign 7: Billing for Work You Cannot Verify

Hourly billing in probate creates a structural incentive problem: an attorney billing by the hour earns more money the longer the estate stays open. This does not mean your attorney is acting in bad faith — but it does mean that detailed billing review is important.

You have the right to request itemized billing statements showing the date, description, time spent, and attorney rate for each billed activity. If billing entries are vague ('case review — 2.5 hours'), you can ask for more specific descriptions. Repeated billing for 'review' and 'conference' without corresponding court filings or correspondence to show for it warrants a direct conversation.

Warning Sign 8: Promised Deadlines That Repeatedly Slip

'We'll have the inventory filed by the end of the month.' 'Expect the distribution by August.' 'The closing letter should come any week now.' Attorneys sometimes give optimistic timelines that slip repeatedly. A single missed target is understandable. A pattern of missed commitments — where the target date moves every time you ask — is a significant warning sign.

When an attorney gives you a target date, ask: 'What would need to happen to miss that date?' This forces identification of the specific risks. If the target is missed, you can specifically ask whether those identified risks materialized or whether it was simply not prioritized.