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| Phillip G. Gubler and Thomas J. Bayles, Attorneys at Law |
If I die without a will, the probate process will take years. The probate process, while time consuming,
does not have to take years. The biggest
delay is the time given to creditors to file claims. Once that time has passed, and the Personal
Representative has paid legally enforceable bills and taxes, a final
distribution can be made and the estate can be closed. This will take some time but it does not have
to be an extended period.
There are a number of reasons
why the probate process becomes long and complicated. Some of those reasons include the decedent has
a large taxable estate, or the decedent has an estate that continues to
generate income. Celebrity estates, such
as those of Elvis Presley or Michael Jackson, have been known to generate
income for decades. The majority of us
do not fit into the aforementioned categories and the likely reason for an
extended probate is dissention within the family. If a family member challenges the will, or
the beneficiaries cannot agree on distribution, then the court may have to make
the decision. The best way to stop a
protracted probate is for the beneficiaries to stop fighting.
If I die without a will, the state will get everything. Generally, the state does not inherit your estate. The rules of inheritance, known as intestate
succession, mean your estate will likely be divided between your surviving
spouse and children. If you leave no surviving
spouse or children, your estate may go to your parents, siblings, nieces and nephews,
or your long lost cousin. The state will
only get your money when no relatives can be located.
The cost of probate will be more than the value of my estate. This is likely not the case especially if you
own real property. Costs will include
court filing fees and publishing fees to announce the creditor claim
period. Additionally, there will be attorney
fees, and possibly appraisals, real property recording fees, and certified
copies of court documents. This amount
could be thousands of dollars all together but it will likely be a small
portion of the value of the estate. Of
course, proper estate planning would be more cost effective.
I will be the Personal Representative because I am the oldest. Neither birth order nor gender are determining
factors when it comes to the Personal Representative of a deceased parent’s
estate. If the decedent named a Personal
Representative in his or her will, the court will appoint that person unless
there is a good reason why that person cannot or should not serve. (A disability preventing the person from
serving or a felony conviction are considered good reasons.) The court will usually appoint a spouse or an
adult family member to act as Personal Representative or the court may appoint
two people to serve as Co-Personal Representatives.
When choosing a family
member to act as your Personal Representative, you should consider naming your
most responsible and conscientious child or family member to act in that
capacity.
