Probate at Death
In a Probate at death, a petition is filed with the probate court for the appointment of a Personal Representative (formerly called an executor) and the admission of a will (if there is one.) Notice is given to interested parties. If no objection is made to the petition, the individual is appointed as the Personal Representative of the deceased person and the will admitted to probate. Under the direction of the probate court, the Personal Representative then gathers the assets, inventories them, pays creditors, and distributes the assets to the appropriate parties.
Probate on Incapacity
Conservatorship is often referred to as “The Living Probate.” This takes place when a person loses the ability to manage their own financial affairs through incapacity, some system is required to provide for the payment of their bills and management of their assets.
When a person becomes incapacitated, a relative or friend may petition the probate court for appointment as conservator, and give notice to interested parties. If no objection is made to the petition, the appointment is made and the conservator gathers the assets of the person, inventories them, and manages them for the benefit of the incapacitated person under the direction of the court. Annually the conservator must account for the use of the assets to the court.
Probate for Minority
Minors are “legally incapacitated” and therefore unable to transfer or manage property held in their own names. Therefore, when a minor receives assets, either through gift or inheritance, a conservatorship may be required to manage their affairs. This conservatorship is basically the same as that for incapacitated persons but will most likely end when the minor reaches age 18. People often believe that a parent can serve in this capacity without a court order, however, this is incorrect.
Problems with Probate
— Probate Takes Time — a minimum four months for probates at death, but usually much longer
— Probate Costs Money
- Attorney fees
- Personal Representatives fees
- Court costs
- Legal battles
— Potential for multiple probates – in multiple states
— Probate Causes a Loss of Privacy — All court filings are a matter of public record:
- Greater potential for contests due to publication.
- Business information may become public.
- The family may be exposed to solicitations.
— Probate Can Be Emotionally Taxing on Family Members — it takes much longer for a final resolution to be achieved compared to other methods.
— Probate May Cause a Loss of Control – probate court approval may be required to deal with the property of the deceased in certain circumstances.
— Probate has Potential for abuses — Parties interested in a share of the estate may fight over the appointment to control your assets or may contest your estate plan in hopes of forcing a settlement.
Despite everyone’s best efforts, sometimes there is a disagreement over the decedent’s estate and final wishes. Sometimes these arguments are over personal property and sometimes over sentimental items. Other times, the issue is one of control and decision making. Still other times it deals with undue influence over the decedent in the creation of the documents or mental incapacity that may invalidate the decedent’s purported estate plan. In some circumstances, the argument will surround a family business or second marriage situation.
It is our goal to try and resolve these conflicts as amicably and in the most cost-effective way as possible while ensuring that the decedent’s true wishes are carried out. We will attempt every avenue, including mediation and negotiation, to resolve this issues short of court action. However, these issues may require a contest regarding the will or trust or other litigation regarding the estate in order to be resolved. Though probate or estate litigation is not pleasant, sometimes it is the only available avenue for recourse.
We are experienced in handling all aspects of estate, probate, and trust litigation in the Salt Lake City area. Please give us a call today at 801-290-5888 to set up your free initial consultation and discuss your probate options.