It starts with an early morning trip to the Courthouse for a probate case. As a quick reminder, a probate is usually needed when a deceased person owns real property in their names only, and there is no estate plan in place; or when the deceased person has financial assets without beneficiaries listed; and/or in a few other circumstances.
A Will is not enough to avoid probate – watch this video to learn why!
Anyway, I walk into the courtroom, 10 minutes before the judge is due to arrive, and I join a decent size crowd, let’s say around 50 people. I’m guessing that some of them are attorneys, some of them are parties to a probate case (personal representatives, heirs, maybe creditors…), and some of them may be here to support their loved ones, or even to contest a hearing / dispute the pleadings. Nobody knows who everyone is, if they are connected to a case, or if they are there just to be nosey and hear about a friend or family member’s case. Can they do that? Yes, because the probate process is public and anyone can come in the courtroom and listen.
There are lots of feelings floating in the air – anxiety, stress, sadness, grief, anger, uncertainty. Most people look like they do not want to be there, attorneys included. Surely, all of us have better things to do.
I take a seat, verify that I have all my pleadings ready, and then I people watch. That’s what almost everyone else is doing, as there is not much else to do. When the judge comes in, we all stand, and then take a seat, and wait for our case name or number to be called out.
There can be several reasons for a hearing in a probate case – a Personal Representative has to be appointed, sale of property, issues that need to be resolved, and then a final hearing is needed to close the probate.
The minute the first case was called, everyone stopped talking and directed their attention to the judge, and to what they had to say. There are several uncontested cases that only take a few minutes, but everyone’s focus is on the bench. Out of curiosity, or maybe because they want to be better prepared for their turn, most people listen carefully to what is going on.
The next case is called out by the judge – Estate of (Loved One, let’s say) Case Number whatever. The attorney for the case stands up, and looks for their client (let’s call them Grieving Spouse) and motions them to approach the bench. They are there to appoint Grieving Spouse as the Personal Representative for Loved One’s Estate. Grieving Spouse is elderly and it takes them a minute to get to the bench. By that point, the entire courtroom is looking at them. There is nothing else to do, I don’t think anyone is trying to be mean or offensive, but the alternative would be to stare at someone else or at the walls. Grieving Spouse looks defeated, sad and tired. The last thing they probably want to do at that moment is to be there, and to have 30+ people see them struggling physically and emotionally.
When someone is to be appointed as Personal Representative, the applicant gets sworn in by the judge (“raise your right hand…”) and the attorney has to ask several questions that assures the judge and the legal system that the case was filed correctly and that the person applying is entitled to be in this role. One of the essential questions is – “how are you related to the deceased person?” At this point, Grieving Spouse breaks into tears and says – “They are my Spouse.” As I try to avoid staring, I look at the other people in the courtroom, and most of them had teary eyes, or at least a compassionate look on their faces. They finish with the questions, the judge signs the Order and Letters and Grieving Spouse leaves with their attorney. The probate case has just begun though – there are many decisions to be made and steps to take – creditors to address, heirs to handle, assets to locate, collect and maybe liquidate, accountings, so it is very likely that Grieving Spouse will be back again at least once more.
The moral of the story – do not put your loves one through this! Not only is it less expensive to have an estate plan in place, as opposed to the cost of a probate case, but the emotional and physical toll this public process can take on a family can be easily avoided.
Usually there is no need for probate after the death of the first spouse, as most assets are held in joint tenancy, or the spouse is listed as a beneficiary. In my story, something must have happened – Loved One’s assets were either left out of their existing estate plan, or Loved One owned real property and other accounts by themselves, without any other designations.
When you work on our estate plan, I recommend that you work with an attorney who focuses their practice on estate planning, as opposed to having estate planning as one of their many services areas of work. There are many circumstances to address and provisions to include and discuss when planning. A general practice attorney may not have the knowledge and experience to provide the needed advice and direction.
For example, at Unity Legal Services we use a drafting software that designs your plan according to your specific goals and wishes, not a form that replaces names. As Estate Planning is so much more than a set of documents, we will also address in detail all types of financial assets and real and personal property – how they work, how they will be distributed and the options available to meet your goals. It is also important to us that you feel comfortable enough to openly discuss all your worries and plans.
Take advantage of our 30 minutes free consultations – see flyer here for more information or give us a call at (405) 857-8231!
If you like a group setting better for information gathering, consider joining one of our Free Community Estate Planning Classes at The Well in Norman. Sign up here!
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Please do not hesitate to give us a call us today at 405-857-8231 to discuss the information provided in this email or any other estate planning needs or concerns.