Are You Facing Probate Court?
If you’re like most families navigating probate court, you’re consumed by this unfamiliar legal world while all you really want to know is when you can have control over your own family’s affairs. Many families like yours begin the Probate process not realizing exactly how complicated it can become. Before they know it, they’re busy, frustrated, and maybe overwhelmed, feeling like they have a lot more work on their hands than expected.
There are many types of matters that would be handled at the Probate Court level. The most common matters that lead to Probate Court are: Decedent Estates (commonly known as Probate Estates,) Guardianships, and Conservatorships.
If you are facing one of those matters and considering managing the probate process on your own, or if you have not yet planned for your own death and wonder what that process would look like for the family you leave behind, here are the top four probate pitfalls we want you to be prepared for.
Pitfall #1 – It’s Time-Consuming
If you find yourself resolving a matter through Probate Court, be prepared – it’ll take a while. Decedent Estates, for example, must be open for a minimum of five months but are usually open for at least a year and sometimes much longer. Guardianships and Conservatorships for incapacitated individuals are open indefinitely, usually only being closed if the individual dies or regains capacity.
In addition to the Court timelines, it can be time-consuming to accomplish the tasks required by the Court. Multiple forms must be filled out and filed with the Court. The filing of the forms may also require the filing of asset statements or other documentation, while others require Court hearings or permission from the Judge to proceed. Some other requirements may consist of getting doctor notes, a notary, a medallion signature guarantee, etc. Accomplishing all of these tasks can become a part-time job. People caught in the Probate process often complain of how many errands they must run to the Court, bank, post office, financial institutions, etc., all while maintaining their own job, family, and personal life. They must also keep good records of everything they are doing and keep interested parties informed. It can be a lot to manage and can consume a lot of time.
Pitfall #2 – It Is Not DIY Friendly
The probate process is made up of court rules, court forms, and set deadlines, therefore it should be simple to navigate, right? Unfortunately, this is not true. Many courts have how-to kits and excellent information on their websites, but as with any set of instructions, it may not be complete enough for the inexperienced person reading them. The courts strive for a uniform process, but no two court employees will always operate the same. Therefore, the process will largely depend on which court staff is processing the documents. Many procedural steps will vary from county to county and even equipped with experience, education, and a head full of knowledge, navigating the Probate court can take years of experience to master. Even those who work in Probate everyday learn something new with every Probate matter they administer and often get hung up on variances from county to county.
Even with a how-to kit or other research, most, if not all, people attempting the process will have some questions and need some guidance. Court staff are not allowed to give legal advice and will often refuse to answer any questions. Every day there are people at the probate counter attempting to navigate the process themselves and are sent away with news that their documents are incomplete but are not told why or how to correct them.
What Assets Are ‘Probate’ Assets?
Identifying probate assets versus non-probate assets can be a tough job for the person in charge. In many instances, the nature and value of the assets are unknown and the financial company on the other end of the line will not provide the information asked of them. Fortunately, the inventory is not due until 91 days after the Personal Representative is appointed, so there is time to gather this information before any deadlines are missed.
Sometimes, assets are not discovered right away and are unknown until quarterly or yearly statements arrive in the mail. It is important to work diligently to gather all the assets and properly value them. This may include real property, tangible personal property, bank accounts, stocks, bonds, insurance policies, retirement accounts, business interests, etc. Some assets may be non-probate assets and making this distinction can be difficult. After determining what the probate assets are, they must be identified on the Estate Inventory and a Probate Court inventory fee will be assessed based on the total value of the assets.
Who Are The Interested Parties?
Simply filling out and filing forms with the court is not all that is required. In every matter filed with the court, there will be persons who are considered ‘interested parties.’ Determining who the interested parties are can be difficult. Interested parties may consist of a spouse, children, other family members, a care facility in charge of a person, and sometimes state or government agencies. After determining who the interested parties to the matter are, these individuals must be served, within certain time-frames, copies of all the filed court documents. After properly serving the interested parties, additional documents must be filed with the court. This is a crucial step to properly administering a matter in the probate court and can easily be missed. If a hearing is approaching and interested parties are not properly served, the judge will likely refuse to hear the matter until corrected.
Pitfall #3 – Your Personal Life Becomes Public Record
Matters that are administered through the Probate Court are public record – therefore can be accessed by the public and often times, downloaded directly from the internet. Court documents contain private information such as family, health, records, finances, etc. These matters are discussed openly during Court hearings and are on file with the Court. It is an unfortunate result of resolving a matter via Probate Court.
Many families are extremely uncomfortable with the idea of their entire personal lives being accessed by strangers, so this unknown probate pitfall can cause a lot of stress.
Pitfall #4 – It All Could Have Been Avoided
In many instances, matters that end up in Probate court could have been avoided with just a little bit of up-front planning. This isn’t true for every situation, but as it pertains to Decedent Estates – proper Estate Planning should reduce or eliminate the need for Probate completely and make the process of administering an Estate much easier on the family members in charge.
As it pertains to guardianships and conservatorships for incapacitated individuals, properly drafted and thorough Power of Attorney documents will grant the authority for a trusted person to make financial and health decisions. By doing so, the need for Guardianship and Conservatorship proceedings in probate court can be avoided altogether.
What Do You Do Next?
Whether you are now facing a probate matter on your own, or you’re looking to avoid that unfortunate situation for your family members after your death, Mannor Law Group is here to help. Contact us today!
