Probate: Is it really that bad?

by BillCrane

Probate Helena Montana

One of the topics I am most frequently asked about by estate planning clients is probate.

  • What is it?
  • Why is it necessary?
  • How much does it cost?

These are questions I answer on a weekly basis.

Simply put, probate is the court-supervised process of administering a decedent’s estate, ensuring any outstanding obligations of the decedent are taken care of, and ultimately distributing the decedent’s property out the intended heirs or beneficiaries. As daunting as that may sound, we Montanans are lucky because probate here is not nearly as expensive or arduous as it is in some other states. Where the decedent lived will determine where their property will be probated, so if they lived in Montana then their estate will need to be probated here.

One thing to keep in mind is that probate only applies to the transfer or disposition of probate property. Importantly, property owned in joint tenancy, or that which has a valid transfer on death (TOD) or pay on death (POD) designation typically does not need to pass through probate. Rather, those types of assets transfer to the named beneficiaries as an operation of law upon the decedent’s death.

While many people assume that probate is something to be avoided at all costs, in reality probate has many benefits as well. Perhaps the most significant of these is the fact that once the probate process has been completed, there can no longer be any future claims against the estate. If probate is not completed properly, it is possible that a creditor or other person believing they have some interest in the estate could show up well after the estate is settled and make a claim against the estate. Completing the probate process is a relatively inexpensive way to prevent such a scenario from happening.

How complex a given probate matter will be depends on many different factors. If you find yourself appointed the personal representative of a loved one’s estate, don’t panic. Rather, get the help of an experienced probate lawyer who can assist you through the probate process, help you deal with creditor claims, and ensure that the decedent’s estate is probated correctly.

Six things to think about when choosing a Personal Representative in your Will

Six things to think about when choosing a Personal Representative in your Will

Picking a personal Representative for your will

One of the most important decisions you will make when having your Will drafted is deciding who will serve as the Personal Representative. The Personal Representative is the person who is legally responsible for ensuring that a probate is opened, your assets are properly distributed pursuant to the terms of your Will, and that your estate is closed within the statutory time period. Obviously, there is a considerable amount of responsibility that accompanies acting as a PR. Below are a few considerations to keep in mind when making your decision.

  1. Think about the most responsible person you know. This may be a family member or a close friend. Ideally, this individual can handle basic financial matters and is organized enough to meet deadlines imposed by the court.
  2. Will your PR be around when you die? Choosing a PR who is your age or even a bit younger
    can be beneficial, especially as you get older.
  3. Location is important too. If your estate will need to be liquidated, i.e. assets sold or otherwise disposed of, consider someone who lives nearby in order to minimize their travel costs while arranging to sell your assets.
  4. While it may seem obvious, your Personal Representative must be eighteen years old.
  5. Serving as a Personal Representative can be stressful. Choosing someone who is mature and levelheaded will ensure that your probate is handled quickly and efficiently.
  6. Perhaps most importantly, you should ask if the individual(s) you have in mind are actually willing to serve as your Personal Representative. After all, the best candidate in the world won’t be of much use if they refuse your appointment.

With these considerations in mind you will be much better prepared when you meet with your estate planning attorney. Even after you’ve had your Will drafted or updated you should check in with your attorney every few years to make sure your choice of Personal Representative is still the best fit for you and your situation.

When Should a Personal Representative Use a Probate Attorney?

Estate Planning Attorney_Helena_ Probate Attorneys_Kelby R. Fischer,Attorneys at Law Helena MT 59601

The short answer is: most of the time.

The slightly longer answer is: whenever you have questions or need assistance in settling an estate.

If you are a Personal Representative or Executor of a decedent’s estate, there is a good chance you have recently lost someone you loved. This can be a confusing and stressful time, and help may be very welcome during these situations.

Here are just a few reasons to use a probate lawyer:

  • If the decedent owned a business a probate attorney can assist with the valuation and sale of the business.
  • If there are family members who are going to contest the will a probate attorney can advise and represent the Personal Representative through the process.
  • If the estate is insolvent or does not have enough money to pay all of the decedent’s debts you should get advice from a probate lawyer before paying any of the creditors.
  • If the estate is large and owes federal or state taxes, you should retain legal and tax counsel.
  • A probate attorney can advise you when the decedent’s property is transferred through contracts, living trusts, transfer on death (T.O.D./P.O.D.) designations or joint ownership.
  • To help you navigate all of the various requirements under the Montana Uniform Probate Code.

Remember, the main reason to retain an attorney who specializes in probate is to help settle the estate as quickly, easily, and inexpensively as possible. The cost of hiring a probate attorney is an expense of the estate, and thus is paid out of the estate, not your own pocket.