Why You May Still Have to Open a Legal Probate Proceeding

Probate is the legal process for recognizing the validity of a person’s will after their death and appointing the nominated decision maker. This person, also known as an executor or personal representative, administers the deceased person’s estate and ensures that their money and property are transferred to the beneficiaries specified in their will. If someone dies without a will, probate is the process by which a court declares who that person’s heirs are and appoints an administrator who will distribute the person’s money and property as required by state law. Because the probate process can sometimes be expensive and lengthy, and the details of the deceased person’s estate may become part of public court records, many people create an estate plan designed to avoid probate by using a revocable living trust. However, there are some circumstances in which a probate proceeding may still be necessary.

A Third Party Refuses to Accept Your Affidavit

Affidavit for small estates. Nearly every state allows smaller estates (the amount depends on the state) to bypass the typical probate proceedings, or at least use a quicker and simpler probate process. In those states, after a certain number of days have passed following a person’s death, the beneficiary of a small estate may submit to a person, bank, or other institution a small estate affidavit stating that they are entitled to the money or property, along with a death certificate. The affidavit is usually required to be notarized, and typically the person or institution to which it is submitted can rely on the affidavit to transfer the money or property to the beneficiary. The person or institution will not be held liable if it is later revealed […]

2023-02-25T13:04:28-08:00January 27th, 2023|Common Problems, Estate Planning, Probate|

The Pros and Cons of Probate

In estate planning circles, the word “probate” often carries a negative connotation. Indeed, for many people—especially those with valuable accounts and property—financial planners recommend trying to keep accounts and property out of probate whenever possible. That being said, the probate system was ultimately established to protect the deceased’s accounts and property as well as their family, and in some cases, it may even work to an advantage. Let us look briefly at the pros and cons of going through probate.

The Pros

For some situations, especially those in which the deceased person left no will, the system works to make sure all accounts and property are distributed according to state law. Here are some potential advantages of having the probate court involved in wrapping up a deceased person’s affairs:

  • It provides a trustworthy procedure for redistributing the deceased person’s property if the deceased person did not have a will.
  • It validates and enforces the intentions of the deceased person if a will exists.
  • It ensures that taxes and valid debts are paid so there is finality to the deceased person’s affairs rather than an uncertain, lingering feeling for the beneficiaries.
  • If the deceased person had debt or outstanding bills, probate provides a method for limiting the time in which creditors may file claims, which may result in discharge, reduction, or other beneficial settlement of debts.
  • Probate can be advantageous for distributing smaller estates in which estate planning was unaffordable.
  • It allows for third-party oversight by a respected authority figure (judge or clerk), potentially limiting conflicts among loved ones and helping to ensure that everyone is on their best behavior.

The Cons

While probate is intended to work […]

2023-02-25T13:54:13-08:00October 19th, 2022|Common Problems, Estate Planning, Probate|

What if I Cannot Find a Beneficiary?

When someone has named you as the executor (also known as a personal representative) of their will or the trustee of their trust passes away, you are obligated to distribute that person’s money and property according to the document’s terms to the designated beneficiaries. (For convenience, the roles of executor and trustee will be referred to throughout this article as the general term fiduciary.) Sometimes, perhaps because of a family conflict or just falling out of touch, the whereabouts of a will or trust beneficiary are unknown. What should you, as the fiduciary, do if you cannot locate a beneficiary of the will or trust?

As a fiduciary, you have an obligation to use reasonable diligence to locate a missing beneficiary. What is considered reasonable depends on the circumstances, including what efforts have been made to locate the missing beneficiary and how much money or property is at stake.

At a minimum, a fiduciary should call the last known phone number and send notice of the estate or trust administration to the last known address. If this initial effort yields no results, then the fiduciary should contact known family members or friends for information that may lead to the beneficiary’s location, search social media and people-search sites on the Internet, publish notice in the newspaper, check property records, and otherwise use their best efforts to locate the missing beneficiary.

If the value of property to be distributed to the missing beneficiary is very small, then the fiduciary will likely not be required to spend a lot of the estate or trust’s money to locate the missing beneficiary. If, however, the property value is significant, then the fiduciary may have to […]

2023-02-25T13:20:13-08:00October 5th, 2022|Beneficiaries, Common Problems, FAQ, Probate|

Three Tips for Overwhelmed Personal Representatives

While it is an honor to be named as a trusted decision maker, also known as a personal representative or personal representative, in a person’s will, it can often be a sobering and daunting responsibility. Being a personal representative requires a high level of organization, foresight, and attention to detail to meet responsibilities and ensure that all beneficiaries receive the accounts and property to which they are entitled. If you are a personal representative who is feeling overwhelmed, here are some tips to lighten the load.

  1. Get help from an experienced attorney.

The caveat to being a personal representative is that once you accept the responsibility, you also accept the liability if something goes wrong. To protect yourself and make sure you are crossing all the “t’s” and dotting all the “i’s,” hire an experienced estate planning attorney now. Having a legal professional in your corner not only helps you avoid pitfalls and blind spots, but it will also give you greater peace of mind during the process. In fact, in some states it is a requirement that a personal representative be represented by competent legal counsel, so it is always a good idea to discuss your responsibilities with an attorney before you take action. It is also important to note that the expense of hiring an attorney does not have to be borne by you. As a personal representative, you are allowed to hire professionals to assist you in carrying out your responsibilities, and they can be paid from the deceased person’s money. This includes professionals such as financial advisers and certified public accountants.

  1. Get organized.

One of the biggest reasons that you […]

2023-02-25T14:15:28-08:00October 4th, 2022|Common Problems, Estate Planning, FAQ, Probate|

Standing and Error Correction in Probate

Wills, Trusts & Estates Prof Blog:  “Estate and guardianship proceeding are in rem and decisions are binding on the world, often without personal service or direct notice. Error correction in probate is essential because incorrect decisions can adversely affect administrations for years in the future. The Texas state legislature recognizes the importance of inheritance and guardianship and progressively expanded probate jurisdiction, including granting statutory probate courts exclusive jurisdiction over probate matters, and concurrent jurisdiction with district courts over trust and other matters. Statutory probate courts even have the power to transfer cases in other courts in other courts around the state to their own court when the proceeding affects a pending administration – the power affectionately known by practitioners as the “reach-out-and-grab” power. The legislature and courts recognize the difference between a “normal” lawsuit and an ongoing, continuing estate or guardianship administration and the need to accommodate the ability to correct errors well beyond the typical thirty days after an order is signed. The first analysis in every probate proceeding is to determine the parties who have standing in an estate.”

2018-10-01T13:19:12-07:00October 3rd, 2018|Estate Planning, Probate|

An Estate Planning Checklist to Facilitate Wealth Transfer

Studies have shown that 70% of family wealth is lost by the end of the second generation and 90% by the end of the third.

Help your loved ones avoid becoming one of these statistics. You need to educate and update your heirs about your wealth transfer goals and the plan you have put in place to achieve these goals.

What Must You Communicate to Future Generations to Facilitate Transfer of Your Wealth?

You must communicate the following information to your family to ensure that they will have the information they need during a difficult time:

  • Net worth statement, or at the very minimum a broad overview of your wealth
  • Final wishes – burial or cremation, memorial services
  • Estate planning documents that have been created and what purpose they serve:
    • Durable Power of Attorney, Health Care Directive, Living Will – property management; avoiding guardianship; clarifying wishes regarding life-sustaining procedures
    • Revocable Living Trust – avoiding guardianship; keeping final wishes private; avoiding probate; minimizing delays, costs and bureaucracy
    • Last Will and Testament – a catch-all for assets not transferred into your Revocable Living Trust prior to death, or the primary means to transfer your wealth if you are not using a Revocable Living Trust
    • Irrevocable Life Insurance Trust – removing life insurance from your taxable estate; providing immediate access to cash
    • Advanced Estate Planning – protecting assets from creditors, predators, outside influences, and ex-spouses; charitable giving; minimizing taxes; creating dynasty trusts
  • Who will be in charge if you become incapacitated or die – agent named in your Durable Power of Attorney and Health Care Directive; successor trustee of your Revocable Living Trust and other trusts you’ve created; personal representative named in your will
    2016-12-13T20:33:27-08:00November 18th, 2014|Beneficiaries, Estate Planning, Gifts, Probate, Trusts, Wills|

    New Arizona Law Increases Small Estate Exemptions from Probate

    Arizona Senate bill SB 1232 will become effective September 13, 2013.  This new law modifies Arizona Revised Statutes Section 14-3971 to provide that the small estate probate exemption amount for personal property will increase from $50,000 to $75,000 and the exemption for real property will increase from $75,000 to $100,000.  To learn more about Arizona probate and small estate exemptions go to Arizona Probate Law.

    2023-02-26T07:29:22-08:00August 20th, 2013|Probate|

    California Recognizes Tort of Intentional Interference with Expected Inheritance

    California has finally joined the majority of states and recognized the tort of intentional interference with expected inheritance (“IIEI”).  This adoption was done by the California Court of Appeals based on the fact that the IIEI claim is consistent with other California laws, the fact that of the 42 states that have considered adopting an IIEI claim, 25 states have adopted the claim, that the US Supreme Court has called IIEI as “widely recognized” tort, and other public policy considerations.

    The ruling came out of the California Court of Appeals for the Fourth Appellate District, after the deceased's longtime partner was denied any inheritance by the California probate court.  Brent Beckwith was in a committed relationship for nearly 10 years with partner Marc Christian MacGinnis.  MacGinnis had no living family members other than his sister, Susan Dahl.  But MacGinnis was estranged from his sister.

    At one point, MacGinnis showed Beckwith a will on his computer that divided his $1 million plus estate between Beckwith and Dahl.  MacGinnis never signed the will.  MacGinnis wanted to print and sign the will, but was never able to do so.  MacGinnis later fell ill.  He asked Beckwith to print the will.  When Beckwith couldn't locate the will, MacGinnis asked Beckwith to prepare a new will, based on the distribution plan MacGinnis had already discussed with Beckwith.  When Beckwith called Dahl to discuss the will, Dahl claimed that she had friends who were attorneys and she would have them draft a trust for MacGinnis, which she claimed was more appropriate for her brother.   She told Beckwith not to give the new will to MacGinnis for signing.  A few days later, MacGinnis went in for surgery.  […]

    If You Like Your Privacy, Create A Trust

    Should you create a will based estate plan or a trust based estate plan?  It depends on your goals.  While a will and a trust serve some of the same functions, some of the major differences become apparent when you examine how each is administered.  A will must be entered into probate.  Probate is a court proceeding, which means that documents filed during that court proceeding become public record.  This means that when a person's will is admitted to probate, it becomes a public record, just as we saw in Joe Paterno's case.  On the other hand, trusts do not need to be admitted to probate.  This is because if a trust is properly funded (meaning a person's assets are all transferred into their trust) then probate is unnecessary.  One of the major purposes of probate is to effectuate the transfer of property from the deceased to his or her heirs.  By using a trust, probate can be avoided since the deceased already transferred property out of his or her own name and into the name of the trust.  Once a person who has a trust passes, the terms of the trust take over and the deceased's property is transferred according to the terms of the trust.

    Any estate planning lawyer worth their salt will always inform clients that a trust is the best possible option.  However, if someone decides to go with a will based estate plan, here is an explanation for “Dummies” about one needs to know about probate:

    Probate is a term that is used in several different ways. Probate can refer to the act of presenting a will to a court officer for filing — […]

    2016-12-13T20:33:28-08:00June 21st, 2012|Estate Planning, Probate, Trusts, Wills|

    Probate Dispute Costs Estate $162M

    For more than 26 years, a probate battle has raged over the estate of wealthy Connecticut businessman Francis “Hi Ho” D'Addario.  Before D'Addario died in 1986, he prepared a will that distributed his estate, valued as high as $162 million, to his wife and five children.  Between lawsuits and probate laws that fail to protect against abuse, 26 years later the D'Addario will is still pending before a probate court.  Even worse, when the case was unsealed last fall, it was found to be insolvent.  But where did $162 million go?  Estate of Denial ponders this question:

    On a rainy and foggy March night in 1986, a small plane crashed outside of Chicago, killing F. Francis “Hi Ho” D’Addario, one of the most prolific and colorful industrialists of the 20th century in Connecticut.

    Successful and wealthy, D’Addario was a 63-year-old Bridgeport businessman who had a will that distributed his substantial estate – valued at as much as $162 million — among his wife and five children.

    It was a complicated matter. D’Addario Industries was diverse, from construction and paving to real estate, television and gambling to the Brakettes, a professional women’s softball team. That was nothing, however, compared to the mess that awaited in Connecticut’s probate courts.



    2012-06-21T16:07:59-07:00June 21st, 2012|Estate Fights, Probate, Rich & Famous|

    Joe Paterno’s Will Unsealed

    After Joe Paterno's death, his estate was admitted to probate.  Typically, documents filed in a court proceeding are public record.  If a Will was filed as part of a probate case, that too would normally be public record.  However, Joe Paterno's family requested that his Will was sealed, which the court later did.  If someone had a Will but not a Trust, I can understand why they might want to do this.  Joe Paterno had a sizable estate and perhaps the family didn't want the world to know about his plans for distribution.  Recently, Paterno's Will was unsealed.  Turns out, Joe had already planned for this eventuality by creating a Trust.  Paterno's Will was a typical “pour over” Will, meaning that any asset that he owned that was not already in his Trust was “poured” into his Trust.  A pour over Will typically doesn't list what these assets are, but instead functi0ns more as an all encompassing provision by transferring assets that didn't quite make it to the Trust.  The meat of Paterno's estate plan and the part everyone wants to see is the Trust.  Unlike Wills, Trusts are private and need not become a public record after a person's death.

    For more information about trusts, read Richard Keyt's Article Understanding the Significance of Trusts.

    2016-12-13T20:33:28-08:00June 15th, 2012|Estate Planning, Probate, Rich & Famous, Trusts, Wills|

    Former County Attorney Andrew Thomas Wants To Change Judicial Selection Process

    Estate of Denial:  “Former Maricopa County Attorney Andrew Thomas, who can no longer practice law, announced his support Thursday for a ballot measure to change Arizona’s judicial selection process.

    Thomas, disbarred in April, said his backing of Proposition 115 is just the beginning of his fight to reform government.

    At a news conference on the state Senate lawn, Thomas announced the formation of a campaign committee, Citizens for Clean Courts, to support the proposed constitutional amendment. Among other things, the measure would give the governor a larger role in selecting state and county judges.

    Joining him were family members of elderly Arizonans whose estates have been depleted by probate and fiduciary fees under Maricopa County Probate Court.

    Scottsdale resident Patti Gomes said court-appointed lawyers and fiduciaries drained her 90-year-old mother’s $1.4 million estate. Gomes and others said their families have been victimized by judges, attorneys and administrators in the probate system.

    Thomas said he’s not a victim, though he has repeatedly claimed the Arizona judiciary conspired to end his career.

    “That is because we got too close to the truth and the judiciary took us out,” Thomas said of himself and two former prosecutors.”

    2012-06-11T08:52:25-07:00June 11th, 2012|Probate|

    Probate Abuse Highlighted By Famous Cases

    Examiner.com:  “That’s a headline to grab attention in Austin, Nashville, L.A. and for entertainers across the country – as it should. Growing use of probate instruments like wills, trusts, guardianships and powers of attorney is putting at risk both individual liberties and property rights. An ongoing legal battle involving the “Godfather of Soul” James Brown’s estate helps illustrate this point as also does the case of Nashville rocker Danny Tate who in past years fought a questionable conservatorship (guardianship) and now is targeted in what appears a series of retaliatory actions for speaking out against the perpetrators of his alleged probate abuse and the “justice” system that allows it to continue. The general public may read or hear of such actions while continuing to enjoy an “it can’t happen to me” mindset, but such confidence is misplaced as a reality emerges in which people at all levels of wealth – be it worth $50,000 to $100,000, $1 million or far more – are targeted for Involuntary Redistribution of Assets (IRA) actions. Wealth is relative and in today’s world – there’s always someone happy to take yours.”

    2012-05-21T15:19:43-07:00May 21st, 2012|Estate Fights, Lawsuits, Probate, Rich & Famous|

    AZ Bar Suspends Attorney Critical of Probate Court

    Estate of Denial:  “The lawyer who spoke out in a series of ABC15 Investigations on Arizona’s probate system has been officially suspended.

    Grant Goodman took on attorneys and guardians in Maricopa County. He filed lawsuits on behalf of vulnerable adults who claim the probate system was taking advantage of them.

    Goodman appeared in several ABC15 investigations that uncovered abusive practices by the Sun Valley Group, a Valley guardianship company.”

    2012-05-15T15:41:15-07:00May 15th, 2012|Probate|

    AZ Appeals Court Rules Widow Got A Fair Trial Despite ‘Unacceptable’ Conduct During Probate

    Estate of Denial: “After a year and a half of waiting, the Arizona Court of Appeals has at long last taken up the request to do right by a 90-year-old lady who was “protected” right into the poorhouse.

    The court ruled that a probate court commissioner and the attorney whose law firms wound up with much of the elderly widow’s money engaged in conduct that was “highly inappropriate” and “unacceptable.”

    It called the court-sanctioned siphoning of her life savings “inexcusable.”

    Then the appellate judges put their stamp of approval on the entire shameful episode, saying there’s no evidence that Marie Long was unfairly treated. They advised Marie and her sisters to, in essence, to move on.”

    2016-12-13T20:33:30-08:00May 9th, 2012|Probate|

    Update: Amy Winehouse Did NOT Have A Will

    Probate Lawyer Blog:  “Shortly after Amy Winehouse passed away from accidental alcohol poisoning at the age of 27 last July, reports surfaced that she not only had a will, but she had the foresight to update her will after her divorce from ex-husband, Blake Fielder-Civil. These early reports have recently been proven wrong.

    Probate records were recently filed showing that Winehouse died intestate, meaning without a valid will. The estate value is listed as £4,257,580 (worth about $6.7 million U.S.) in total assets, but taxes and other debts reduce the value to £2,944,554, or $4.66 million, U.S. Many believed her estate would be worth much more, perhaps as high as $15 to $20 million.

    But, let’s not jump to conclusions so quickly. The assets passing through probate court are those left in her individual name when she died. So anything held jointly with someone else, or that had a beneficiary designation (like a life insurance policy), would pass outside of probate, directly to the other person. Also, if Winehouse had a trust — which is unlikely, considering she didn’t have a will — anything held in the trust would also avoid probate. None of these types of assets would be included in her estate value as listed in the probate documents.”

    2016-12-13T20:33:31-08:00April 4th, 2012|Probate, Rich & Famous|

    Arizona Probate Case Records Will Not Be Available Online

    Estate of Denial:  A newly imposed rule restricting electronic access to Maricopa County Probate Court records means that cases cannot be reviewed without physically going to the clerk of court’s office.

    The rule has raised concerns among many of those involved in probate court who say it prevents them from gaining access to their own cases or cases involving relatives. It also has some probate judges and lawyers calling on the state’s highest court to lift the rule, which they described as inconvenient and problematic.

    “Apparently these case records were previously provided online in violation of the rule,” Presiding Maricopa County Probate Court Judge Rosa Mroz wrote in a December e-mail. “At this time, however, there is nothing we can do.”

    The rule, which prohibits the general public from accessing court records from so-called remote locations, including home and laptop computers, was established in 2009 and has been unenforced for almost two years.

    The decision to limit electronic access was based in large part on concerns over identity theft, according to those who served on the Supreme Court advisory committee, which recomended the restriction in 2009.

     Officials at the Arizona Supreme Court, which oversees operations of all state courts, said they didn’t become aware that Maricopa County was making judicial orders and minute entries in probate cases available online until last month, when they ordered a halt to the practice.

    The restriction also applies to court orders in mental health cases.

    The decision to limit access comes after a 2010-2011 investigation by The Arizona Republic that found Maricopa County Probate Court for years allowed the assets of some vulnerable adults to become cash machines for attorneys […]

    2016-12-13T20:33:37-08:00January 5th, 2012|Probate|

    Probate Nightmare: South Carolina AG Rewrites James Brown’s Estate Plan

    Estate of Denial:  The South Carolina Supreme Court heard arguments Tuesday in the attempt by former James Brown trustees Robert Buchanan of Aiken and Adele Pope of Newberry to set aside a 2008 deal between former S.C. Attorney General Henry McMaster and some of Brown’s disinherited claimed heirs to transfer about $50 million from Brown’s “I Feel Good” Trust.

    McMaster’s deal rewrote Brown’s estate plan, giving McMaster control of Brown’s assets through a trustee selected by the attorney general and can be removed at will. The agreement also gave away more than 50 percent of Brown’s assets to disinherited relatives and claimed relatives.

    Buchanan and Pope argue the court’s decision may determine the future of private philanthropy in South Carolina.

    Brown’s estate plan dedicated his entire $100 million dollar music empire to education. After providing education trusts for seven grandchildren, Brown put the rest in the James Brown “I Feel Good” private foundation to be used solely for scholarships to needy children.

    In the Aug. 10, 2008, agreement, McMaster rewrote Brown’s estate plan to give 25 percent of the music empire to Brown’s companion and another 25 percent to five of Brown’s more than one dozen claimed children.  McMaster’s rewrite was subsequently amended to leave the “I Feel Good” foundation with only about 47 percent of Brown’s music empire.

    2011-11-08T08:39:31-08:00November 8th, 2011|Estate Fights, Probate, Rich & Famous, Trusts|

    Can You Protect Yourself From Probate Abuses?

    Estate of Denial®: At Estate of Denial®, the question of “what can people do to protect themselves, their assets and their heirs?” is often asked. Five years of studying probate culture and estate disputes yields “not a whole lot” as the most honest answer. And this status will not change despite personal liberty and property rights being increasingly challenged unless the public educates itself on inheritance rights and other probate-related threats to help take a stand against the organized, systemic looting of property and freedoms occurring in courthouses, legal offices and associated venues across this country.

    “Proper estate planning” is hardly the foolproof safeguard from abusive probate actions touted in legal industry product sales pitches, but it is necessary. It should be done, however, with the knowledge that wills, trusts, guardianships and even powers of attorney are not failsafe mechanisms for protecting assets and in fact, today’s legal environment is a breeding ground allowing use of these instruments in ways absolutely contrary to their intended purposes.

    2016-12-13T20:33:39-08:00October 4th, 2011|Estate Planning, Probate|
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