Probate—now there’s a term no one likes to see rearing its
ugly head. When discussing estate plans and wills, the word probate comes
up often, but what is it, exactly? And, perhaps more importantly, how
can it be avoided?
Probate is the period of time following someone’s death during which
their estate is locked. This means the validity of the will must be proven
or a determination of heirs must be made by a court of proper venue. Sometimes
this occurs because relatives or heirs are arguing over an estate, or
contesting a will.
The duration of the probate period will vary from state to state. In the
eager-to-please middle states, probate may only last a few months and
might only have a few associated fees. However, if you venture out into
the more popular eastern and western regions, probates often take up to
a year and may come with exorbitant fees that exhaust most of the estate assets.
When I first started my practice, I was an eager young attorney ready to
prove myself to the world. I was hired to represent a stubborn man in
a probate matter. The first hearing was heated and Judge Copeland kindly
heard my arguments. After listening to both sides, he spoke to our clients,
saying, “If you two don’t sit down and work this out, then
these two lawyers will get all the money.” Walking past me, my client
went straight over to his sibling and worked everything out in ten minutes.
In truth, hired lawyers are not the best choice when it comes down to resolving
a family dispute. We are programmed to fight, not resolve. In a contested
probate, the attorneys will win. Not you.
Creating a trust can help you avoid probate; it’s as simple as that.
And, as an added benefit, during probate, the estate is opened up to debt
collectors. I have had clients who, upon losing a loved one, never even
realized that their spouse had a credit card on which almost $20,000 was
owed. When left with an inheritance of only $40,000, the remaining money
went entirely towards paying off this type of debt, the probate fees,
By creating a trust, you are not necessarily evading debt collectors, but
trusts ensure that knowledge of the estate is not made public. There is
no notice disbursed to potential creditors, and thus it is less likely
that debt collectors would come knocking at the door. Granted, it is up
to the trustee to pay all debts, but some debts, especially older ones,
may not be on the trustee’s radar. If the trustee is unaware of
certain debts, how could they be expected to pay it?
Probate also opens the estate up to litigation. When it comes to litigation
over a will, the burden of proof falls to the person offering the will
for probate. As we all know, courtesy of the slew of courtroom-based dramas
on television, bearing the burden of proof is not the most desirable position
to be in. However, when dealing with a trust, the burden of proof falls
wholly on the contestant. For this reason, we rarely see trusts challenged.
Between the time and money required to litigate and the difficulty in
proving their case, most people opt to let it go.
Cindy Galvan, my paralegal and current law student, taught me a valuable
lesson about how to handle people in the probate process. Many years ago,
my client, an elderly gentleman whose son had just passed, was struggling
with his emotional state. He began to curse, scream and name call. Cindy
handled the situation very professionally. Looking back on the situation,
she says, “When I learned that this man had lost his son, I could
only think about losing my son and how I would be feeling.” If you
find yourself in a difficult probate situation, either with a family member
or other loved one, remember to be kind, because everyone is fighting
their own private battle.
If you need help with creating a trust or other estate planning documents,
contact The Willingham Law Firm, PC.