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Will Your Heirs Wind Up in Probate Court?

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: April 5, 2019

In a perfect world, our earthly passing would mean that family members come together and divide our belongings in a way that best meets the needs of each individual, while simultaneously adhering to the wishes that we lovingly conveyed before our death. In the actual world, events following our departure can give rise to chaotic […]

In a perfect world, our earthly passing would mean that family members come together and divide our belongings in a way that best meets the needs of each individual, while simultaneously adhering to the wishes that we lovingly conveyed before our death. In the actual world, events following our departure can give rise to chaotic – and even vicious – undertakings. During such scenarios, probate can become the stage for mitigating family drama.

Understanding Probate

In spite of its poor reputation, probate doesn’t always equate to a negative experience. In some states, the process of probate is initiated automatically in the case of substantial debt or inheritance. In all U.S. states, it is a required part of the process of transferring ownership of estates. In the case that a will or living trust has been previously established – and is uncontested – the appointed representative need only to file with the courts to establish the validity of such documents; arrange to address tax and other debts; and distribute property according to the specifications of the deceased.

If there are disputes over the contents of the documents, the process of probate can become much more involved. For those contesting a will or trust in probate, the challenge is to prove that the signer of the document was not in a right frame of mind when outlining the specifications. There may be claims that the deceased was coerced into signing; that the specifications are inapplicable; or that the included directives to survivors are unreasonable. Affected parties can also bring an executor into probate over accusations of failure to execute properly.

In the absence of a will or trust, the likelihood of extended probate is high. Survivors will be left to hash out any details of inheritance, and will be charged with determining the best course of action at the time. This is often occurring during a time of high emotion, which can compound the stress.

There are ways to avoid probate, entirely. These tactics involve an extensive amount of early work, including ensuring that equal co-owners are listed on every financial account obtained during the individual’s lifespan. In this case, accounts are simply taken over by the listed co-owner upon our passing, and the name of the deceased is removed. Completing Transfer On Death stipulations for each account, or giving away assets before death, are other options for avoiding probate litigation.

Streamlining the Process

To provide protection from the burdens of probate litigation, and if your desire is to make the process of distributing your wealth to your heirs as painless as possible, then it is imperative to ensure that a living trust or will is established. With a living trust, options such as protecting assets, donating to charities, and rights to revoke are outlined. Those with a valid living trust in place are able to distribute their wealth immediately and at whim. This enables the avoiding of the time and costs of probate, along with reducing the chance that a judge will eventually be deciding who gets what. Keep in mind that some aspects of a living trust are subject to expiration, and the document should be reconfirmed on a regular basis.

A will is a straight-forward document, often only requiring a witnessed notarization, and sometimes only requiring a handwritten note and signature. The primary difference between a will and a living trust is that the specifications of a will only go into effect following our death. Make sure that the signed will is stored in a secure location – such as a bank vault or a fire-proof safe – and that interested parties know where the document is stored. Revising a will is as simple as creating a new one, as the most recent document will override any specifications in a previous one.

Ideally, both types of documents will be drafted with the input and understanding of those who stand to inherit our debts and assets. Many of the conflicts which occur during probate arise as a result of family members feeling slighted or overburdened. If applicable, one may seek to engage in pre-death counseling services, during which time matters concerning all parties can be addressed and worked through in a supportive environment. This preemptive approach toward potential conflict can provide peace of mind for the person desiring to promote familial harmony after passing.

Another step in making the process less burdensome is to ensure that your executor knows what is expected of the role upon the event of your death. In addition to understanding the specifications in the will or living trust, executors need to know the stored location of the will; the timelines for filing with probate; penalties for failing to act; and the procedures for debt and creditor collections.

Conflict Is Inevitable, but Also Preventable Through Careful Planning

In spite of all of our best efforts to avoid or minimize the involvement of probate after our death, the extent of the process is ultimately up to those who remain. Our specifications in our will or trust can go a long way toward resolving any disputes which arise, but human behavior can be unpredictable during these times of stress and changes. Issues that we believed to be resolved or established can turn into highly disputed territory after our passing. Far too many of us have stories of being involved in such a debacle.

Keep in mind that the burden of these types of interactions will be placed upon your named executor. In the case that you have named more than one, even more potential conflict may be immanent. The executor – or executors – will be responsible for overseeing distribution of assets; addressing debts; managing disputes; and navigating any legal hurdles. This can be a draining process, so take steps to ensure that the person you have placed in this position is the one best qualified for the task. Some tips for choosing a reliable executor include making sure that the executor is also a named beneficiary; that he or she practices sound financial techniques; and that he or she is mentally and emotionally grounded.

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