Probate: The Good, The Bad And The Ugly

Most people are surprised to find out that probate may be necessary whether or not the decedent had a will. A will doesn’t eliminate the requirement for probate, rather, a will is the main mechanism used in the probate process. Probate is a court-supervised process for identifying and gathering the assets of a deceased person, paying the decedent’s debts, and distributing the remaining assets to beneficiaries.

A Circuit Court Judge supervises probate proceedings. The judge appoints the personal representative and issues “letters of administration,” also referred to simply as “letters.” This document shows to the world that the personal representative has the authority to act on behalf of the decedent’s estate. The Judge also holds hearings when necessary and resolves all questions raised during the administration of the estate by entering written directions called “orders.” The probate process is necessary to wind up the affairs the decedent leaves behind. It ensures that all of the decedent’s creditors, including the IRS, are properly paid. Probate can easily cost from 3% to 7% of the total estate value. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary.

If the decedent died without having a will he or she died intestate. When someone dies intestate the distribution will be done according to the order established by the state statutes. The probate court will ensure that the law is followed. If a decedent died leaving a properly executed will they are testate. The court will ensure that the will is valid and distributions are made according to it. However, it is important to remember that a will can be contested. This can delay the distribution for years and will be a great expense for the decedent’s estate because attorney’s fees and court cost are paid from it.

Many times, when there is a large estate, family members or heirs may have conflicting interest. The interested parties with conflicting claims will then hire legal representation. The interested party bringing the claim will be the plaintiff and the personal representative (in their capacity as personal representative) will be the defendant in the lawsuit. Some of the most common objections are that the decedent lacked mental capacity at the time the will was executed; the decedent was forced or was under undue influence; the will was forged, or the will was not properly drawn, signed or witnessed, according to the state’s formal requirements. Once litigation begins, the will and family affairs become public record for the world to see. In addition to the public embarrassment and expense, if the plaintiff wins, the decedent’s wishes are not carried out.

Although it can be expensive, the probate process does not need to be complicated. The best way to diminish or eliminate an unpleasant experience in probate court is to plan in advance. However, planning in advance does not mean go to the office supply store and get a “fill-in the- blank” will or download it from an unknown source. Remember that you must abide by the laws and requirements of your state. There are very specific requirements for properly executing a will, such as, who can or should be a witness and, where and when you and your witnesses may sign. The actual language used in the will may be fine, but the will can be contested if it doesn’t follow the formalities in execution. Also, certain family members may have rights given by statute. Minimize the possibility of your will being contested, seek an Estate Planning attorney. A knowledgeable attorney will be able to draft a will that meets your needs and the laws of your state.