You, in Probate Court For Your Own Estate! Oh No!
It is becoming pretty common knowledge that probate court is a place to avoid. People know that probate court is where estates are disbursed after people die, with or without without a will. They also know that they are very expensive, slow moving and often do not follow the wishes of the Deceased Person. They understand that probate attorneys frequently receive large percentages of estates as their fees. They know all the bad news about probate courts.
They do not know that they can end up in a probate court regarding their own estate while they are still living. How can this happen? Are not you in control of your own estate while you live? The answer is, not always .
What if a child wants to move you to a nursing home? What if you become disabled in an accident, and are unable to manage your own estate? What if you are in a coma? What if you are suffering from a long term illness? What about Alzheimer’s disease? What if, heaven forbid; are you arrested, charged with a crime, and jailed? What if you have a greedy heir who wants to be appointed your guardian in order to gain control of your estate, and unfortunately questions that you are suffering from dementia and are unable to manage your own affairs? I recently heard about a disinherited child opening a probate in an attempt to be appointed guardian while the parent still lived in order to circumvent the disinheriting provisions. All of the above scenarios and more happen every day somewhere. They can all result in a probate court proceeding to determine who will manage your estate.
You may wonder why this is so bad. Do not probate courts act to protect you and your estate? The answer is, not always . If you are incompetent, for any reason, you will probably not be allowed to testify. The only testimony might well be from the person seeking control of your estate. Of course someone will have to testify to prove your incompetence, but I have seen medical professionals hired by greedy heirs to testify that competent people are actually incompetent. It happens. Just contesting such a proceeding can be very expensive and highly stressful, even if extremely victorious. I have seen creditors seek appointment just to insure payment. I have seen charitable beneficies seek appointment to avoid a person from wasting their request.
Let me explain that one. Your will leaves $ 500,000 to your college alumni fund. The college learns that you are giving lavish gifts to a politician or religious leader. They believe you are being cheated or unfairly affected to make the gifts and they open a probate to stop you from giving everything to this person who is controlling you. Naturally they want to be appointed your guardian. Then they can stop you from buying a new car or traveling or spending money in any way they allege is frivolous. What if your son believes you are throwing his inheritance away on a woman who is 40 years younger than yourself? Have you ever read about such a scenario?
I hope I have convinced you that you need to avoid finding yourself in such a situation. Do not count on your will. It is ineffective until your death. Even living trust provisions may require probate proceedings; though they will allow you to hand pick your guardian (successor trustee). The best method, by far, is a Springing General Power of Attorney. If I prepared your Living Trust since 2007, you have one as I now always include such a document in all my Trust packages automatically. However, not all attorneys do include them. Many document preparation services charge extra for them, if they offer them at all. Be sure that it is included in any estate plan you purchase. It is almost as important as your will or your trust.
The word “Springing” means that it only takes effect when you are actually disabled. It ends when you regain the ability to manage your property or upon your death. It allows you to appoint the person you want to manage your estate when you are unable for any reason. You can appoint a professional trust if you do not trust your family members. You effectively retain control even during you disability. You can specify that you want to remain in your own home as long as possible, as opposed to a care facility. Even if a probate proceeding is initiated by a greedy heir, the Power of attorney should control who gets appointed to manage the property. While I am able to prepare such documents for people that are effective in all states except Louisiana, you can also find a local attorney to prepare such documents for you. I discouraging people from using fill in the blank forms for such an important document as state compliance may be critical and a mistake in filling out the form may have devastating consequences. However you get it, I urge you, regardless of your age as accidents happen at all ages, to waste no time in obtaining this valuable document for yourself and your spouse. There is no reason why you should ever end up in probate court.