What is probate?
Probate is one of the most misunderstood proceedings in all of the law. Essentially, probate is the process of 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 and until he has been properly appointed by the court. This process to get him appointed is called probate.
Many clients come to our office indicating they want to avoid probate. That is not always necessary but may be well worth consideration. The reason? The probate process requires “heirs” to agree that the will is that of the deceased person and consent to the appointment of the executor. Unfortunately, this cannot always be accomplished as easily as hoped for and anticipated.
The surviving spouse, for example, 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 consent to the authenticity of the will and appointment of the executor. Sometimes, the kids won’t sign even when we thought they would. In all of these cases, additional, costly and time-consuming legal procedures must be employed in order to proceed with the administration of the estate. The executor cannot be appointed until all of the heirs have been located, all have capacity, or are personally represented by another with legal authority for them who does have capacity, and agree. Failing to agree requires no effort by the heir beyond simply not signing the waiver and consent form necessitating that the Court schedule a hearing.
It is very important that you have a will. If you die without a will, the state will decide who gets your assets, and, more importantly, who the administrator of your estate will be. If you have minor children, then your will must name the guardian of those minor children whom you wish to have appointed or the state will decide who will raise your children.
The worst part of probate is having to deal with lengthy and expensive legal requirements involving the courts to do what you believe you should be able to do automatically, all while your survivors are dealing with the loss of a loved one.
Probate takes a minimum of six months, but rarely is an estate open and closed within six months. In many cases, if you are unable to meet all the requirements to the satisfaction of the Court, or if there is any contest to the will or the administration of the estate, it could linger for years.
Interestingly, you do not need to employ the attorney who drafted the will for probate. It is important when you pick a probate lawyer to ensure they are experienced in probate and, more importantly, they have a process in place to bear the burden of keeping the estate moving for you so you don’t have to attend to it constantly. Much of our work can be done by paraprofessionals, thus minimizing the cost to you and your family.
Let the experience and trust of Butcher Elder Law support you and your family.