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Is Probate Ever a Good Thing?

As most of you already know, generally speaking, I recommend that my clients draft their estate planning documents to avoid probate after a loved one has passed away. With proper planning, it is possible to draft documents that will allow you and your family to avoid probate in almost every situation. As I have stated in previous blogs, I generally recommend avoiding probate for the following reasons:

  1. Probate is generally a more public process (i.e., it requires that certain documents be filed with the court);
  2. Probate generally takes more time than a trust administration to administer someone’s estate.
  3. Because it generally takes more time, probate is generally more expensive (i.e., attorney’s fees, costs, and court filing fees) than a typical trust administration.

For these reasons, I generally recommend creating a revocable family trust or using other documents to help my clients avoid the need for a probate.

Are There Any Exceptions to the General Rule of Trying to Avoid Probate?

Although I generally recommend against probate, there are some situations where probate is actually a good thing. First, if there is a poorly drafted Will or an ambiguous provision in a document, then, unless the family can agree in writing about the terms of such document, a court will need to interpret what the ambiguous terms mean. If you are ever the Personal Representative (Arizona’s term for executor) for an ambiguous Will, then you essentially have two choices: (1) get the family to agree on the meaning of the ambiguous provisions in writing, or (2) go to court and have the court rule on the ambiguous terms. In this case, going to court to have the judge interpret the ambiguous provisions protects the Personal Representative and also gives clarity to the entire family about these provisions. As a side note, most of these poorly drafted or ambiguous Wills in these situations were drafted by people themselves without a lawyer or were drafted using Will forms or online forms without a lawyer. Thus, hiring a qualified attorney to draft your Will for you will most likely eliminate this issue.

Second, when there is an issue with the Personal Representative, it often makes sense to file a petition with the court to force the Personal Representative to do what they are supposed to do. For instance, if the Personal Representative is not sending out the required notices or giving the beneficiaries the required information about the administration of the estate, then the family members may have no choice but to file a petition with the court to force the Personal Representative to do what he or she is supposed to do. In this case, the court provides a forum for the family to hold the Personal Representative accountable. In more egregious situations where the Personal Representative has taken estate assets for himself or herself or done other bad things, then the judge may also require that certain items be returned to the estate or that the Personal Representative be removed.

Next, in some cases, when a beneficiary of the Will or Trust cannot be found, it may be necessary to get the court’s approval about who the beneficiaries are and what their distribution rights are before any distributions are made. In this way, the Personal Representative is protected.

Finally, it happens rarely, but it does happen. In some situations, there is so much contention between the family members that the only way to administer the estate is with court supervision. These are the estates were the family members can’t agree on where to open the estate checking account or whether to sell or donate the 20-year-old vehicle. Avoiding the probate process is great if the person in charge can administer the assets efficiently, giving the proper notices, etc., but if the person has difficulty doing so (and won’t resign) or if there is so much animosity in the family that nobody trusts the person in charge, then going through a supervised process with the court overseeing everything may be the only way to get the estate administered.

Probate Is Still the Last Resort.

Thus, while I always encourage my clients to avoid probate in the drafting stage of their estate planning documents, sometimes going through the probate process in court is the only way to get the estate administered and get angry family members who do not see eye to eye through the administration process and moving forward in their separate ways.

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John Even

Our firm has helped hundreds of families just like yours handle a wide variety of business planning, estate planning, probate, and elder law issues. When families or business owners are not getting along, we can also handle any disputes and litigation related to their businesses, wills, trusts, guardianships, or conservatorships. Please give me a call, so that I can help you work through these difficult issues with confidence.

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