Live or Let Probate, Part 1

If you watch the news or read a newspaper shortly after some noted celebrity dies, it is always remarkable how quickly the media turns from the so-called notoriety of the deceased person’s life, to “What did the individual state in their Will?” Of course with our world’s obsession with gossip and materialism, it is no stretch of the imagination to see this type of question. However, in the legal profession, when I observe these situations, I always ask the question, “Why didn’t their attorney do more for them than just write a Will?”

Most people will face a time in their life when they start to realize that they are not immortal. It is at that time that they begin to worry about what will happen in the future to their possessions and how will they take care of their loved ones when they leave this earth. In that time most people will ask around to find an attorney or simply find an ad in the yellow pages or on the internet of an attorney who supposedly practices estate planning. When they meet with the attorney, he or she will write them a Will. After all, that’s what everybody does, right?

What most people do not realize is that when they meet with the attorney who writes their Last Will and Testament, they are very likely to have the following results:

  1. The attorney actually completed a very simple legal document and, quite possibly, did the least that they could for the client.
  2. The attorney hopefully did not charge a fee that was too extravagant, because what they did not tell you (most likely) is that after your death, your family will probably re-hire that same attorney and pay a much larger fee, because……
  3. Your estate is most likely to go through the Probate process.

Now, as I am often asked, “What is probate?” Is it completely evil, a four letter word, one of the most malicious court process ever invented? The answer is usually, “No.” Let me answer it by stating that probate, in its simplest form, is the legal process where the State, where the person lived in, begins and completes the process of distributing the deceased individual’s possessions. The reason why a person has a Will is due to the fact that a Will is essentially a letter of instruction advising a probate judge of how the deceased person’s estate is to be distributed. The bottom line is that when you only write a will, you have essentially guaranteed a one-way ticket for your family to go through the probate process.

So, what is so wrong with the probate process? There are several points to keep in mind when thinking about whether or not to allow your estate to someday be probated, they are as follows:

  1. Probate usually takes a long time to complete. All states have an amount of time established which indicates the minimum amount of time that a probate estate must remain open for, but the average time is six months. However, if your estate is contested, due to family fighting, creditors, etc. You are most likely looking at the probate process extending into many years. I have handled many probate cases and have never been able to close a probate case in less than a year. That is not to say that a probate case cannot be closed quickly, it is just very rare.

 

  1. Due to the fact that the probate case will most likely take a minimum of a year to resolve, it will be an expensive process. This includes court costs, newspaper publication fees, and of course, attorney’s fees. I personally try to charge flat fees on most of the cases that I handle, but with probate, a flat fee is usually impossible, due to the fact that it is so difficult to know how long the probate case will take. If your estate is contested, be prepared to have your children spend thousands of dollars on legal fees with the probate process.

 

  1. The probate process has to be published in the legal section of your local newspaper where you resided before your death. So, in addition to the fees associated with this, it also means that your probate information is public information. If you don’t want to let the world know about the value of your estate and who it goes to, as indicated in the statement regarding celebrities, then probate is not the choice for you.

 

  1. Due to the high visibility of your probate case as indicated above, your estate runs a higher risk of having claims and challenges filed against it in the probate court. This could occur even if the claims are frivolous in nature.

So, the moral of the story is: As a good steward of the resources that God has given you, going through the probate process is very often a bad idea. If you are planning for the future, which we all should do, take some time to research this process and find an estate planning attorney who is well versed in these concepts to provide you with the necessary counsel on how to avoid this issue. Probate can be avoided and there are some very simple steps to take in order to accomplish this important goal. What are they? You will have to tune in next week to see my next part for the answers!

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