And, there are many reasons to skip the probate process.
In fact, the vast majority of estates where we represent the executor are settled informally and without probate. We are able to protect our executors by using family settlement agreements and are able to avoid probate. However, did you know that if you are an executor, there are five good reasons to actually and volutarily use the probate system.
The main reason? To protect yourself from liability.
That's right, as an executor, you should want to peobate a the will when any of thees five situations are present.
David M. Frees III
Read on to learn how probate can actually prevent you from being sued later.
1) Probate Makes Sense When The Will Is Confusing: Sometimes, you may find that you have been appointed as executor of a will drafted many years ago, on a computer or using a form, or by hand, where the person writing the will did not get the advice of counsel. Occassionally, even wills drafted by an attorney may be confusing or unclear. If you attempt to interpret the language on your own, without benefit of a lawyer or judicial interpretation, you open yourself up to litigation and personal liability. How? Well, if beneficiaries disagree with your interpretation they might later refuse to dign an agreement to end the estate, and/or sue you for a greater share of the estate after you have made distribution.
In this case, the Orphan's Court and the probate judge is your best friend. Once the court determines that your interpretation is correct, you cannot subsequently be sued.
2) Probate Makes Sense When You Cannot Determine Which Will Should Be Probated: In some cases, there may be multiple writtings. Which ones are valid or invalid? How should they be interpreted together? If you make this decision on your own, you are again exposed to liability. Have the probate court decide, and you are protected from losing your personal funds.
3) Probate Makes Sense When The Estate IS Insolvent: In some cases, there are insufficient assets to pay all of the creditors. In such cases, the law provides for a particular order of payment. If you are mistaken, you're laible. Get the Orphan's Court to approve your proposed payments and distribution to get released from liability.
4) Probate Makes Sense When There Are Questions About The Tax Clause: Many wills contain a clause that directs the payment of certain taxes by the estate. In other cases, taxes of various sorts are to be paid by the beneficiaries. Trying to determine exactly what taxes are to be paid from what source can be difficult and the will might be ambiguous. Get a lawyer and get the court to apporve or modify your analysis to avoid liability later.
5) Probate Makes Sense When The Beneficiaries Just Will Not Cooperate: Sometimes, families (not yours) simply do not cooperate with the executor. And occassionally, they can be mean, nasty and unyeilding. when beneficiaries are being unreasonable and you find yourself stuck between a rock and a hard place, the probate system can be your best friend. The Judge can decide. In addition, sometimes the mere threat of going to court and the additional expense will create a more cooperative environment.
I hope that this helps you to understand, that the probate court is not always undesireable and far from being your enemy, may just be the executor's best friend.
Please leave your comments and questions for future articles below in the comments section.
David M Frees III
Probate Wills Trusts and Estates
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