The Strife and Stress of Probate

women supporting each other through loss

When I hear people talk about estate planning, one of the common statements I hear is “I have a will.” I hate to burst their bubble but for the sake of their loved ones, I do. Gently. I hope by asking, “so you don’t mind if your creditors and people that claim you owe them money get your assets before your loved ones get anything?”

Typically the response is that you could hear a pin drop, and it becomes obvious that whoever I am talking with has never heard or understood what probate is. Their eyes get wide when I explain that the purpose of probate is to make sure ALL Creditors and any Claims made against you are paid before anything you own passes to your loved ones.

To make matters worse often time the person I am speaking with has never been involved with courts and judges and doesn’t understand that they and their loved ones will be the ones to pay all the expenses and costs associated with going to court. Unless you have been proactive and created an estate plan that avoids the court probate process, probate is time-consuming, costly, and open to the public. And it can be downright scary and messy!

During probate, the court supervises several different legal processes, all of which are required by law.
Probate typically consists of the following processes:

  • Determining the validity of your will (if you have one).
  • Appointing a Personal Representative (called an executor or administrator in some states) to be the “point person” during the probate process.
  • Notifying & paying your creditors.
  • Locating and valuing all of your assets.
  • Filing and paying your taxes.
  • Distributing your assets.

Going through all of these steps can be painful and heartbreaking for the people you love. 

Once people understand the probate processes they then seize the opportunity to implement estate planning strategies to help their loved ones avoid probate altogether. After all, those you are leaving behind, are grieving and will have plenty to do because you are no longer there.

If You Have A Will, Probate Is Required 

Most people think that Probate is not required if you don’t have a will. Actually Probate is also required if you have a will as well. A will, in essence, is the instructions you give to the judge in the probate court to advise him or her of what you want. So if you have only a will, your loved ones will still be required to go through the entire probate process after your death. Why? Because the purpose of probate is to make sure your creditors get paid before anything passes to their loved ones.

If you die without a will, (that is called dying intestate), probate is still required. Why? Because the purpose of probate is to make sure your creditors get paid before anything passes to their loved ones. However, since you didn’t have a will that tells the probate judge who gets whatever is left of your

I call this estate planning by default. In effect you may not know you have an estate plan, because you didn’t write an estate plan; but you do have an estate plan. Under these circumstances, your estate plan is written by the State legislature. The problem with the estate plan is you might not like it but by not having an estate plan that you have written you have no choice at all and get the government’s plan for you.

People are oftentimes shocked when we sketch out their family tree and I explain who gets what between their spouse, parents, and children. And if they don’t have a spouse or children and their parents are gone, then what the law does as to more distant relatives. If the deceased leaves no family members, your entire probate estate will go to the state government, more or less by default.  then your assets go to the state. (unless your estate has a relatively low value and qualifies for an abbreviated legal process of administering the estate another way by affidavit.  As a side note, from time to time I have to tell the loved ones to walk away from whatever assets are left because the debts of the deceased exceed what the assets are worth. If a creditor wants to be paid, they can file the probate case and the expense of that is paid from whatever assets you had.

How Probate Works 

The probate process is quite similar if you died without a will or if you had a will.

1. Filing the Probate Case: Following your death, someone is responsible for filing your will (if you had one) and your death certificate with the court. If you had a will, the first step is for the court l to make sure your will was actually “your” will and that it was created and executed in accordance with the laws of the state. This authentication process could involve a court hearing. If it does, notice of the hearing must be given to ALL beneficiaries named in your will, along with ALL those potential heirs who would inherit under state law in the absence of a will. The purpose of this hearing is to give all individuals involved the opportunity to dispute the validity of your will. The legal term for that dispute where the court is inviting family conflict is contest; to contest the legitimacy of your will. For example, someone might contest your will on the grounds that you were unduly influenced or coerced to write or change
your will. If the court declares your will invalid, the bottom line is the same as if the will never existed in the first place.

2. Appointing The Personal Representative: Even if you created a will, the court must formally appoint the person you named in your will as your Personal Representative. (also called Personal Representative or administrator in some states). The court may then require your Personal Representative to post a bond like an insurance policy to reimburse the estate in the event the Personal Representative makes a serious error during probate that financially damages the estate. Guess who pays for the bond? You do.

3. Notifying the Public and Paying Creditors: Since the purpose of probate is to make sure all potential claims against your estate are paid before your assets are distributed to your loved ones, the Personal Representative has to take out and pay for an advertisement (called Notice) with the newspaper over a period of days. (30 days in Colorado) to notify all potential creditors of your death. In most states, any unknown creditors can be notified by.  

Creditors typically have a limited period of time after being notified to make claims against your estate. The Personal Representative can challenge any claims they consider invalid. If there is a dispute between your Personal Representative and your claimants, a trial or hearing must occur to determine if the claim is valid. Guess who pays for that trial or hearing? You do Only then, are valid creditor claims paid. The Personal Representative will use your estate funds to pay all of your final bills, including any outstanding medical and funeral expenses.

Keep Your Family Out Of Court & Out Of Conflict 

When we work with you to create your estate plan, one of our primary goals is to keep your family away from the court system. Having seen the amount of family strife and conflict that often occurs when families are tied up in the court system, I don’t want those you love most stuck in an unnecessary, expensive, time-consuming, and public court process. 

Fortunately, with proactive estate planning, it’s easy for you to spare your family the burden of probate. Stay tuned for Part Two where we will look at the rest of the probate process and ways you can avoid the need for your loved ones to go through probate. Until then, if you haven’t put an estate plan in place or have one that would force your family to go through probate, contact us for a Family Wealth Planning Session.


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