Probate Court

PROBATE

The essence of probate is that you are asking the Court to give you the legal authority over a person’s assets or over the person themselves.

Probate comes into play under two scenarios (1) the person has died or (2) the person is still alive but is incapacitated.

Please note that having the appropriate documents in place can help you avoid probate

If you are just getting started or currently in the probate process, we recommend that you find an attorney that handles probate for your state.

PROBATE – When Person Dies

When someone dies, probate is the mechanism by which you legally declare and distribute that person’s assets and pay liabilities.  How the distribution happens depends on whether or not the person had a will.

The General Concept is that:

If the person had a Will, then you file the Will with the Probate Court; ask the probate court to confirm that it is a valid will; and ask the probate court to give you the legal authority to distribute the person’s assets in according to the Will.

If the person did not have a Will, then you file papers with the Probate Court; asking the probate court to appoint you as the executor (or overseer) of the person’s assets, so that you can distribute the asset’s as you deem appropriate.

Each State has their own laws, rules, and procedures on how things should be done for handling a Will in probate.

PROBATE – When Person Is Incapacitated

When someone can no longer care for themselves to a degree where that person would be considered incapacitated, probate is the mechanism by which you legally declare that person incapacitated and ask the probate court to put you in charge of taking care of that person.

There are two ways in which you can take care of a person:

(1) As their guardian, which means you will be in charge of the person’s health and well being

(2) As their conservator, which means you will be in charge of the person’s assets.

In probate court you can file to be either one or both.  I.E., you can file to be just the guardian; or just the conservator; or you can file to be both the guardian and conservator.  Some states have laws whereby the guardian can act in the capacity as both the guardian and conservator; thereby eliminating a need to file to be both the guardian and conservator.

Each State has their own laws, rules, and procedures on how things should be done for handling filings for an incapacitated person in probate.

PROBATE – When Person Is Incapacitated – Guardian

Guardian (or Guardianship)

A guardian is given the legal authority, by the probate court, to be responsible for the well being, health and care of another person.  In essence a guardian is given power over how and where the person lives.  The guardian’s powers over the incapacitated can include such powers as the person’s comfort, food, clothing, social, recreation, training, education, rehabilitation and more.

PROBATE – When Person Is Incapacitated – Conservator

Conservator (or Conservatorship)

A conservator is given the legal authority, by the probate court, to be responsible for the assets owed by the incapacitated person.  Therefore, a conservator is given power of the person’s bank accounts, house, 401K, pensions, social security benefits; and the conservator can sell the person’s house, sell the person’s vehicles, void contracts, invest the person’s money, pay bills and more.

WHAT YOU LOSE IN PROBATE

YOU LOSE:  Lots of Money, Lots of Time, & Potentially Your Health & Sanity

If You Die Without A Will, a huge percentage of what you leave behind is most likely to be spent on lawyer fees, court fees, and other people who does business within the probate process.  Those other people can include mediators, probate property appraisals, real estate agents, accountants, etc.  So it is best for you to at least have a Will.

If You Become Incapacitated, a huge percentage of what you leave behind is most likely to be spent on lawyer fees, court fees, and other people who do business within the probate process.  Those other people can include mediators, probate property appraisals, real estate agents, title company,  professional guardians, professional conservators, the court’s evaluator, etc.

AND KNOW THAT you could potentially be paying for three sets of attorneys: (1) attorney for incapacitated person, (2) attorney for the conservator, and (3) an attorney for the guardian.  Plus ultimately you may end of paying for the attorneys of any challengers to the probate.

So it is best for you to have a Power of Attorney, that includes what happens should you become incapacitated.

You should also have a Health Care Directive that says who should make decisions about your health, hospitalization, rehabilitation, recovery, etc.

WHAT YOU GAIN IN PROBATE

YOU GAIN:  NOTHING

Only if you have absolutely no one to help you; then, just maybe probate can be a benefit.  However, we ask you to really think hard about the people you know, including grand children, great grand children, nieces, nephews, cousins, in-laws, distance relatives, or church members.

It is always best to have prepared documents that say what you want to happen, instead of letting the probate court decide.

Lawyers