Orrin Onken writes the twice-monthly TGB Elderlaw Attorney column in which he discusses legal issues of concern and interest to elders. He is an elderlaw attorney licensed to practice in the state of Oregon. He also keeps his own blog, Oregon Elder Law, and you can read more about his background here. All his Time Goes By columns are collected in this list.
Many of the people commenting on my column about advance directives sought advice on whether to use a will or a trust for estate planning. This is a nightmare question for a lawyer because it does not lend itself to a one-size-fits-all answer and lawyers disagree among themselves about the choice.
Instead of wills vs trusts, I want to talk about probate today. What is it? How does it work and should you be trying to avoid it?
Probate means different things in different contexts. I call myself an elder law lawyer. I also call myself a probate lawyer. I consider myself a probate lawyer because I work almost exclusively with the probate department of my local court.
The probate department handles wills, trusts, guardianships, conservatorships and a handful of other things. All of those things fall under the general heading of probate.
Probate also refers to the legal procedures used to wind up the financial affairs of a dead person. When non-lawyers use the word probate, they usually mean process for administering an estate.
In the novel, the case drones on for decades without resolution until in the end (spoiler alert) the lawyers get all the money. The characters in the novel who have moved on with their lives find happiness. Those who have put their lives on hold waiting for their inheritance die miserably.
I revisit the book every couple years and recommend it to my clients who seem to be putting their lives on hold awaiting an inheritance.
Bleak House and stories like it – including the ones told by huckster trust salesmen at those free breakfasts – portray probate as a monster that will eat up your estate leaving nothing for your loved ones. That, like the rest of what Dickens and the trust salesmen have to say about probate, is pure fiction. It is not true.
In many cases, probate is a good thing, and often the strategies people devise to avoid it create more problems than they solve. In order to intelligently decide whether probate is something to avoid, you have to understand what it is.
When you die, there is a lot to do. First, someone has to locate and inventory what you own. Then someone has to pay off your credit cards, pay your income taxes, settle up with the doctors and pay the funeral parlor.
If you own a home or stocks or investment property, the property may have to be sold so that your estate can be conveniently divided among your heirs. All of this takes work and the work has to be done whether or not a court is involved.
It make no difference whether you have a will or a trust or no estate plan at all. The administration of your estate will happen.
If you have a will, the will tells the court who you want to administer your estate and who should get the money at the end. The will, however, is of no effect until it has been filed with the court and the person you nominated as your executor has been appointed by a judge.
Similarly, your family does not get your money until the judge orders it. The will is instructions to the judge, not to your family.
This is important. A judge appoints your executor following the instructions in your will. If your will names a convicted embezzler to manage your estate, the judge may refuse to honor your request and name someone different to do it.
If you have been dead for 90 minutes and Aunt Millie is waving your will in the air claiming that she is your executor, she is wrong. She is not an executor and has no power or authority until she is appointed by a court.
If Aunt Millie does get appointed by a judge, she has work to do and time-lines to follow. She has to notify all your heirs that she has been appointed. She has a couple of months in which to collect and inventory your property. The people owed money by you when you died have have a certain amount of time to present their bills and if the bills are legit, Aunt Millie has to pay them.
Your relatives have a certain time in which to claim your will is invalid because you were crazy when you wrote it. The process is orderly, and designed to protect the rights of everybody involved.
If your executor doesn’t do her job, the probate clerks will write her nasty letters and if she doesn’t respond to the letters, the judge will remove her and appoint someone who can get the job done.
If your executor does do her job, your bills will get paid, your property will get sold and your family will receive its inheritance in a timely manner.
I can often distribute the inheritances and close a simple probate about six months after it is filed. Closing may be delayed by many things. Since the real estate crash, many probates can’t close because we can’t sell the family home. The most common delay, however, is battles among the heirs.
Even in Jarndyce and Jarndyce, it was not the probate court that delayed the distribution but rather, disputes among those trying to get their hands on the money.
Some people come to me and say, “I don’t need all that oversight from the court. My family is made up of smart, hard working, honest people who will promptly inventory my property, take care of my bills, pay my taxes and cooperate in dividing my property as I have instructed. They won’t need any prompting, so I don’t need all this probate stuff.”
I believe these people and I work with them on an estate plan that avoids probate.
Other people come to me and say, “My family is composed of crackpots, ne’er-do-wells and weirdos of every sort. Without the court staff cracking the whip to keep the process moving in an orderly manner, my estate will become a convoluted mess.”
I believe these folks too and write them a will.
[EDITORIAL NOTE: Is there an elderlaw topic you would like Orrin Onken to discuss? Leave your suggestion in the comments below and it may turn up in a future column. Remember, Orrin cannot advise on specific personal legal issues.]
At The Elder Storytelling Place today, Mary B Summerlin: Bottle Tree