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Reasons to Choose Going to Probate

Law: Gavel, books, wood

As an estate planning attorney, most of my clients are meeting with me to help avoid probate as much as possible. I have written previous posts all about how to avoid probate. However, sometimes, probate can be beneficial in certain circumstances.

A lot of estates go through probate, which is the court process to distribute assets and pay off debts when someone has passed. Unless there was planning ahead, when most people die where they leave behind real property and assets, their estate will typically go through the probate process. A Personal Representative will be appointed, and the Will will be filed with the court. If there is no will, the assets will be distributed through the state’s “will” – which is called intestate.

If you are a beneficiary of the estate, you may be surprised by the long, drawn-out court procedure which you are at the mercy of. In Oklahoma, a typical probate now lasts around 4-6 months unless it is contested or if selling real estate is involved (which can prolong the process). However, the probate proceeding serves several purposes and once you understand them, it can make it easier to accept the waiting period.

Once the will is validated, the next step in the probate process is to appoint an executor whose responsibility will be to collect the estate’s assets, appraise the assets value, pay creditors, file taxes (if necessary) and finally, distribute the property to the beneficiaries or heirs according to the Will or the state statutes. What is beneficial about Probate is that is a court-monitored proceeding in which the Personal Representative is not only supervised, but he or she must comply with specific procedures and legal requirements. For estates where there may not be a trustworthy person to take control, this is a huge benefit. Even for estates where everyone is honest, having a court oversee everything makes it to where there cannot even be the appearance of impropriety. The court won’t allow dishonorable or unethical conduct by personal representatives/executors.

There are more benefits to probate, though. Personal Representatives are required to provide accountings, unless waived by all the beneficiaries/heirs. The court requires all of the beneficaries’ names, ages and residences, and all the beneficiaries are legally required notice of the court proceedings and any and all court dates. Probate also allows any person interested in the estate to contest the Will.

One note about contesting a Will should be made, however. A beneficiary or heir can contest a Will for reasons which include: 1) mental incapacity of the decedent to make a will, 2) duress, 3) fraud, 4) undue influence, and 5) any other reasons questioning the validity of the will. Beneficiaries and heirs cannot contest based solely on that they do not like what the Will says, because will-makers are allowed to make a will that includes their wishes, but they can be contested based on that the will-maker was not in the right mind to make a Will.

For more information regarding the probate process and how it can protect the rights of beneficiaries, contact our attorney at the Skillern Law Firm, PLLC.

SCOTUS

The Supreme Court of the United States’ (SCOTUS) October session started yesterday, October 3rd. I was looking forward to this term, since there are a lot of interesting and important cases coming up on the Court’s docket. There are 48 cases on the Court’s docket thus far. There are, however, plenty of important cases being petitioned to be taken by the court. One of the most newsworthy is the ObamaCare lawsuits that are petitioning to be heard in front of the SCOTUS. So far, the case has not said whether or not it would be willing to take that case.

I have to say, I love listening to oral arguments. Last year, the Supreme Court started posting their oral arguments of the week each Friday on their website. I would suggest you check them out, if you are so interested, here: http://www.supremecourt.gov.  This was a big deal for the Supreme Court. The (mostly conservative) Justices have always disliked media in courtrooms, even disallowing cameras in lower courts (re: the Prop 8 California gay-marriage case). So, when the Court started releasing oral arguments the week they were argued, I was estatic! In the past, they have released important cases’ oral arguments the day they were released, but the rest of the lesser-known cases’ arguments were not released until after the term was up.  It’s nice to be able to listen to them the week they are argued.

Anyways, for more information on the Court’s new term, read updates, and get analysis on the Court’s case, check out my favorite Supreme Court blog, http://www.scotusblog.com.

Also, if you are interested to read oral arguments from past Supreme Court terms, check out http://www.oyez.org.

Check out other posts at Tulsa Estate Planning Blog!

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