Demystifying the Probate Process

“Probate” seems to be a term that for many people conjures up thoughts of a mystical terrifying monster that robs one’s estate, leaving a decedent’s loved ones with s room much like what the Grinch left after the stealing of Christmas. Fortunately, with a little bit of planning, and often times with no planning at all, the Probate Process is a simple, inexpensive and user-friendly system that provides for the transfer of one’s assets from one generation to the next. What’s more, with a little inexpensive planning, most people can avoid the process altogether and transfer their assets without ever needing to utilize the Probate Court. In this article I will provide a brief overview of the process and make a few suggestions as to how you can easily plan to make the transfer of your estate as easy as possible.

When an individual passes away, all of the stuff he or she leaves behind comprises what becomes the estate. This includes real property, vehicles of all kinds, valuable personal property like artwork, guns, jewelry, antiques, etc. It also includes cash, money in bank accounts, investment accounts, and transferable retirement accounts. Finally, all of the personal belongings like furniture, clothing, household items, and personal belongings are also a part of the estate.

Upon death, a surviving family member or other interested individual or individuals, can file a petition with the Probate Court to be appointed as the Personal Representative (PR) of the decedent’s estate. Once appointed, the Probate Court issues Letters Testamentary, if the decedent left a will, or Letters of Administration in the absence of a will. These letters grant authority to the PR to manage the Estate. This includes, among other things, securing and rounding up all of the decedent’s assets, notifying all of the beneficiaries, providing notice to creditors, paying estate debts, and distributing the remaining assets of the estate.

Once the estate debts have been paid and the assets distributed, the PR prepares an accounting of the estate assets and debts, and files this and a closing statement with the Probate Court to close the estate. Voila! Estate closed and done.

While the procedure of the Probate Process is rather straightforward, problems within a decedent’s estate can arise from conflicting claims among beneficiaries, large, unpaid debts causing the estate to be insolvent, defective title to property causing a break in the chain of title, and a number of other problems, all of which can be avoided with a simple amount of estate planning.

The staff at the Probate Court tend to be helpful and friendly, and the Judge’s are willing and able to help answer questions and solve problems. Forms to complete the entire process are also available on-line or at the court clerk’s office. Many estates, especially those with modest assets can easily be administered without the assistance of an attorney. This is especially true if the decedent has taken the time to draft a quality will or otherwise wisely conducted some estate planning.

As outlined above, the Probate Process isn’t something that one needs to fear or try and avoid at all costs. The effort and expense of the Probate Process can however be avoided with some planning. Use of the very powerful Transfer-on-Death-Deed, and the nomination of death beneficiaries for bank and investment accounts can help a decedent’s beneficiaries avoid the Probate Process altogether.

A word of caution: perhaps the most challenging disputes attorneys and the courts deal with are those arising from an estate after an individual has passed, and the beneficiaries fight over the assets. Throughout my twenty-two year career, the level of greed that I have seen within some of these estates has been almost unbelievable. These disputes can cause each of the disputing beneficiaries to hire their own lawyers and spend immense amounts of money waging bitter war that tears families apart. The expense of probate litigation often exceeds the value returned, and is an incubator for unscrupulous or inexperienced attorneys whose fees can bleed the assets of an estate.

These problems are not caused by some inherent problem within the Probate Process. They are almost always the result of failing to plan, which can be avoided altogether. The greed component is something I have yet to figure out, and to be frank, if you have family members who are inclined to greed, you especially need to plan your estate if you want to avoid the ugly and expensive litigation that flows from a failure to do so.

The solution is to sit down with a competent and experienced attorney, have she or he review your assets, listen to your desires, and help you come up with a solid plan. Spending a bit of money on the drafting of a well-thought-out can save your estate immense amounts of money and avoid the problems many fear within the probate process.

Feel free to call us to book a time to chat about your estate and get you pointed in the right direction for you. Hope this helps.

Matt and the Team