Your loved one has passed away. You are concerned about who will pay the deceased’s bills, who is in charge of the deceased’s assets, how do I make sure the deceased’s wishes are followed concerning their property? These are common questions I hear as an attorney who does probates. It is my hope that with the guidance in this article, your mind will be eased while going through this difficult time. Following are tips on getting through the probate process.
A quick definition before we get started, for those of us new to the process of probate. The term “Probate” is defined as “[t]he legal process wherein the estate of a decedent is administered.” Just like lawyers to define a term with words like “decedent” and “administered”, huh? Removed from nerd-speak, probate is the process of paying the debts and disbursing the assets of the deceased. Now, with that in mind, let’s get to the tips.
Find Out If A Probate Is Necessary
Do not waste your time worrying about probate if one is not necessary. Consult with an attorney to find the most efficient way to distribute the deceased’s estate. However, a good guide is to ask yourself the following three questions concerning whether a probate is necessary: 1) did the deceased own real estate that was titled in his or her sole name (No Transfer on Death Deed, Joint Deed, Life Estate Deed, Payable on Death Deed); 2) did the deceased own property in excess of $50,000 (cars, electronics, cash) in total; 3) did the deceased have either a will or no other estate planning tools (No Joint Accounts or Payable on Death Beneficiary)? If the answer to any of these questions is yes, then you can be fairly certain a probate is necessary.
Communication Is Key
As to the actual process, keep in mind communication is key. It is important you keep an open line of communication between yourself and your family and yourself and your attorney. It is not uncommon for relatively straightforward probate to devolve into a family boxing match because a family member was kept out of the loop on the probate. Whether communication between family members is required or not under the law, it is a good idea.
Also, keep an open line of communication with your attorney. If your attorney is the kind that does not want to communicate consistently about the progress of the probate, find a new attorney. You are NEVER bound to keep an attorney. This is especially true if they are making the probate process even more difficult for you.
Probate is a marathon, not a sprint. It is really common for the person taking the probate reins to expect to accomplish everything in a week. This will NOT happen. The process of going through probate will be a back and forth process of gathering information, such as bills, invoices, and asset lists; submitting them to your attorney; while your attorney compiles lists, inventories, and filings for the court. The process is intended to give everyone a fair shake during the process, including the creditors of the deceased, and the deceased him/herself (though his/her wishes). Allow the process to work. You cannot solve all of the problems and overcome all the hurdles you will experience in a day, week, or even a month. So please do not try.
Do Not Count Your Eggs Until The Court Ink Has Dried
Expectations as to inheritance also need to be kept in check. Let’s say the deceased has a lake cabin and under his/her will, you are to receive the proceeds from the sale of the cabin. Not so fast. You have to keep in mind, if your deceased family member had creditors, they will be getting a piece of the pie as well. Whether it’s for medical assistance, mortgages, or general creditors, the creditors will be aware of the probate process. If a creditor is owed money, they will make a claim. The $300,000 cabin may result in little or no money for you. Keep in mind, probate is not just for the heirs of the deceased. Your attorney should be able to give an idea of the projected inheritance.
Do Not Let The Tragedy Or The Process Come Between Family
While we may not have an exact idea of how the deceased believed the probate process would go, we can guess he/she did not want the family to fight. It is no secret that going through a tragedy is an extremely emotional and taxing period. It is also no secret that if people are going to fight, the fight will probably involve money. If you mix the two together you have litigation napalm. Have periodic conversations with the rest of the family about their comments and concerns over the estate. Any unvoiced and small problem on the front end can destroy families on the back end. This is a simple and common sense tip, but in the midst of family tensions and confusion regarding the probate process, it is often overlooked.
We hope this list of tips makes a hard process a little easier. If you have questions on commencing probate or want information on strategies to avoid probate, contact our Estate Planning Team at 701-297-2890 or email us below.
The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem.