What is probate?
Probate is one of the most misunderstood proceedings in all of the law. Essentially, probate is the presenting of your original last will and testament to the court for its approval and appointment of your executor. Unbeknownst to most people, your executor is NOT free to act on your behalf after your death UNLESS he has been properly appointed by the court. This process to get him appointed is called probate.
Many clients come into our office indicating they want to avoid probate. That is not always necessary but may be worth consideration. The reason? The probate process requires “heirs” to agree (by signing legal papers) the will is that of the deceased person and consent to the executor being appointed. Unfortunately, this cannot always be accomplished as easily as we hope. For example, the surviving spouse may be incompetent, one of the children may be estranged and unable to be located or one of the heirs may be mentally incapacitated and therefore lack the legal capacity to sign the forms. Sometimes, the kids won’t sign, even when we thought they would. In all of these cases, additional legal procedures and costs must be expended to get the will presented and the executor appointed. The executor cannot be appointed until all of the heirs have been located, have capacity, and agree. Failing to agree does not take any effort by the heir other than not signing the waiver and form sent which obeys your will “contested.”
It is very important you have a Will. If you die without a Will, the state decides who gets your assets and more importantly, who your executor will be (except in this case they are called an administrator). If you have minor children then your will must name a guardian of those minor children or the state will decide who your children will be raised by.
The worst part of probate is having to deal with expensive legal requirements and courts to do what you believe you should be able to do automatically all while you are dealing with the loss of a loved one.
Probate takes a minimum of seven to nine months. And in many cases if you are unable to meet all the requirements perfectly (as described above) it could linger for years.
Interestingly, you do not need to use the attorney who drafted your will for probate. It is important when you pick your probate attorney to ensure they are experienced in probate and, more importantly, they have a process to bear the burden for you so you don’t have to. Most of our work is done by paraprofessionals thus minimizing the cost to you and your family.
Contact us to meet our probate department and enroll in our five-step probate process to ensure all the legal burdens are assumed by us so you can take care of your family needs. During this sad time, let the experience and trust of the estate planning law center team support you and your family.
