Our lawyers are often asked what “probate” is and why it is viewed as being “so bad”. Probate is simply the process of gathering the property of a deceased person, paying debts and distributing any remaining property to designated individuals. While this explanation seems harmless enough, the reason people are so anxious to avoid probate is because of the large time-commitment and expense associated with the probate process. The designated personal representative (often referred to as the “executor”) will not only have to file multiple documents with the Superior Court seeking appointment, but will also be required to attend a class on how to administer an estate. The personal representative may also have to post a sizeable bond.
Once a personal representative is appointed, the probate administration process begins with inventorying all of the deceased person’s assets. If the deceased person does not provide an itemized listing of all of their property and financial accounts, an asset search may be necessary – including the hiring of a special kind of a private investigator. While the inventory is taking place, often those who believe that they will ultimately receive property from the estate will become impatient and either demand immediate distribution or simply begin taking property that they want. However, distribution to heirs (if there is no will) or devisees (if there is a will) can only occur after all creditors of the deceased person have been given the opportunity to submit a claim against the estate and all allowed claims are paid in full. If assets are distributed to heirs/devisees prior to payment of creditor claims, those who participated in the distribution(s) could be held personally liable to the creditors. Additionally, the probate intestacy laws governing how the property of a deceased person is ultimately distributed when there is no will may not result in the distribution the deceased person and the heirs anticipated. Thus, the probate process is riddled with pit-falls which make the process nearly impossible to navigate without the help of a competent lawyer and, possibly, other professionals.
On the other hand, an estate plan, complete with a fully-funded revocable living trust, powers of attorney, last will and testament, healthcare directive, transferring documents, and, in some cases, other planning documents, can help to avoid the probate process while giving clear direction to and providing protections for the person administering the estate. Done properly, an estate plan will leave loved ones in control of their assets throughout their lives and seamlessly transfer administrative authority to a successor administrator (called a trustee) at the death of the person who created the estate plan. The attorneys at Holland Law Group provide competent and personalized estate planning services to fit any situation. Contact us today to schedule a free initial consultation with an experienced estate planning attorney.