What You Think You Know About Wills and Probate

Phillip G. Gubler and Thomas J. Bayles, Attorneys at Law

Most of us have a basic understanding of Wills and Probate but sometimes that knowledge is as basic as Wills are good, Probate is bad.  While there is some validity to that thought process, here are a few misconceptions:

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.

JensenBayles, LLP provides a broad spectrum of legal services.  Thomas J. Bayles has been actively providing advice in the areas of trusts, wills, probate and tax planning in the St. George market for over 15 years. Please visit our web site www.jensenbayles.com or call 435-674-9718 and ask for Thomas J. Bayles or Phillip G. Gubler. The information in this article is for educational purposes only and is not intended to be construed as legal advice.