Probate Process




Greg McIntyre: Hi. I’m Greg McIntyre here with my law partner Brenton S Begley for the Elder Law Report

Greg McIntyre: we’re going to talk about something that is complicated.  But extremely important probate. And misunderstood probate. and and trust administration Brenton I hear all the time, but it’s come to me and they say, you know what, Greg Don’t worry about it. I don’t have to go through probate because I have a will to which I have. A very amount of responses to that.  You will go through probate. And so it takes me to get a while to get them there. But that probate is the process right by which your will passES. This assets there is no other process. Your will isn’t worth anything until it’s actually submitted a probate and somebody qualifies as an executor.

Brenton Begley: Yeah, yeah, I like to think about it this way. So if you pass away, The things that you have are your estate. Now, some of those things can be pre-arranged to pass immediately to a beneficiary, that’s named to them. But otherwise,…

Greg McIntyre: If?

Brenton Begley: somebody has to figure out what to do with those assets. And that somebody is the court. And so when the court, when someone passed away, the court is searched jurisdiction over those assets, that don’t already have some free arranged beneficiary, okay? And there’s many ways to do that, but the court asserts jurisdiction and then they appoint somebody to act on the behalf of the court as an officer of the court, and that person is the executive. And just because you name somebody as executor in the world does not mean that they are the executor until they are appointed by the Court until they swear they take that oath right? And on the Bible and the air and you know.

Brenton Begley: They got to take that out and be appointed, okay? And then you begin the process of probate. The process that is necessary for probate assets and the title for probate assets that we passed from the decision to the next generation, right? Here’s another thing. You know, we talked about passing title to assets and that’s a big deal. But there’s also other things that need to happen through the probate process depending on the manner in which the person passed away. If there’s pending litigation before that person passed away…

Greg McIntyre: It.

Brenton Begley: if they’re old contracts, right? You might have a business that needs to be ran. You might have money owed. You you might have carried back, a mortgage on a property that you sold you might have been you know someone might have caused that individual’s death and are liable for wrongful death or personal injury. The probate process is absolutely necessary in interval to making sure that that money contracts.

Greg McIntyre: It.

Brenton Begley: Whatever it is, lawsuit is continues on it. You know, the money is obtained or you can file on behalf of the estate, some type of legal action to make the estate whole for personal injury or wrongful death.

Greg McIntyre: Absolutely. And You know, So the will worth really nothing while you’re alive, doesn’t do anything. The executor can’t do anything for you. The probate process serves to change, change title to assets, that otherwise don’t have a way to change title, like a beneficiary or something, or things in trust, right? And we’ve already talked about in a previous elr about The estate of confusion the different types of the states,…

Brenton Begley: Right.

Greg McIntyre: how you would divide up your estate into probate trust and maybe outside of both of those. And we also talk about avoiding probate all the time but that’s not necessarily that is the common theme is people want to avoid probate.

Greg McIntyre: but really, if you’re a state as large enough, Probate might be the perfect place to handle the transition of assets. What do you think?

Brenton Begley: Yeah. I mean, at some point, you might want to start routing everything through the probate process, for the benefit of that probate process because you have finality of the court order, you have the accountings that must be given to the court and it’s ensuring that everything is routed to that process. So, it goes through the terms of that very important legal document that you put in place.

Greg McIntyre: You.

Brenton Begley: Your will, you know, and that’s something that I like to point out to people even without maybe a larger estate, you know, If you name beneficiaries on a life insurance policy, it’s gonna go to them immediately upon your death and they’re just gonna get the whole thing with no stipulations. If I leave, you know, a 500,000 life insurance policy behind, someone’s gonna get 500,000.


Greg McIntyre: If?

Brenton Begley: And I can’t set any type of stipulations on that. I can’t control what happens with that money, I can’t ensure that money goes to a certain benefit. I can’t ensure that money is used for education, maintenance support of that,

Greg McIntyre:  So you can put, you can put trust like a trust in a wills, right? Testamentary, trust.

Brenton Begley: Yeah. Yeah. So, you know, I might have a life insurance policy that I want to leave to my oldest child, right? And if I pass away, I don’t want that child, you know, to get that at 18, which even 21 and just blow that money. Maybe I want that money to be routed through that important legal document that I put in place that can set stipulations.

Greg McIntyre: Right? But those things are written in the will and…

Brenton Begley: Maybe it goes and trust for them upon my death and stays in trust for certain amount of time. The only getting when they’re 35 or get married or whatever, right?

Greg McIntyre: happen coming out of that, courtroom that court process, the probate process, right?

Brenton Begley: Exactly the probate process, gives it, you know, the salinity of having that court order to make sure that those assets are passed correctly to the correct people through that will you know, that will you set down? And and you know it’s been a lot of time. Making sure it’s very detailed as to what your wishes are gonna be. And that can same thing. Can happen through a trust too during your life. So, you know, will can create a trust at your death is called the Testamentary Trust because it’s created under the last one testament. You know by virtue of your death. Okay. And then you have a trust that is a living trust. That means it’s you know, created during your life and that trust can do the same thing. However, you know, how about this, the trust can be a really good thing for people for certain You know.

Brenton Begley: Certain factors. Okay? But at a certain point you may there may be a benefit to route assets through the probate process that’s not the case. With some of our clients who may face, you know, large long-term care bills or large Medicaid recovery, We want to avoid probate. However, for certain ones of our clients who don’t have that issue, routing things through probate can be a good thing…

Greg McIntyre: If?

Brenton Begley: because it forces, you know, the parties Meaning the executor The beneficiaries to go through this process where the court can, hold everybody accountable and make a final decision as to how things are split up.

Greg McIntyre: And keep talking about a court order. Like, you know, I can rely on the finality of that court order the official on this, the officiality, I don’t know. But really we have the officiality in this we really have Court oversight from beginning to end. And that’s you can take comfort in and…

Brenton Begley:  That’s right.

Greg McIntyre: probate is you have court oversight starting from the very beginning. And different checkpoints with accountings. you know, your executor has no choice really but to abide by the exact rules of your will and…

Brenton Begley: Right. Yeah.

Greg McIntyre: from heading to end until the court, closes it out

Brenton Begley: And, you know, there’s, there’s benefits to that. Certainly, some people want to avoid that. And sometimes in the best interest of the parties to avoid court, oversight to have, you know, to avoid unnecessary delay for assets to pass, especially if it’s somebody who’s really depending on that inheritance to make sure that they can maintain the same quality of life, things like that, you might want to pass to them immediately. However, that’s really not a concern, especially if it’s a large enough of where you want to make sure that, you know, if especially like a state taxes are a fact or something like that, and you want to make sure that you’re a state is handled correctly by a professional where, there’s not going to be any infighting, any prolonged litigation afterwards and that, you know,

Brenton Begley: you know, the the ability for everybody to check off at every step, right? The court to check off at every step that you’re doing things, right? So you don’t get, you know, three months into the process and realize, Oh, you know, we messed up at day, you know, 20, and now we have to rectify it somehow, right?

Greg McIntyre: And a lot of times people are coming to us to try to clean up those messes and fix it. Get in in the middle much easier.

Brenton Begley:  Right.

Greg McIntyre: If we can sit down the terminology assets and develop a plan, to probate the state, and handle it from the beginning to end as efficiently as possible. Right. So So that’s probate.

Brenton Begley: Right.

Greg McIntyre: I’ll tell you what. I think then next week we should separate out and trust administration into its own show. And that’s…


Brenton Begley:  Yeah.

Greg McIntyre: what we’ll do, probate in itself, can be a beast. It can. you know, it’s very Meticulous, as far as.

Greg McIntyre: Things that have to be done in a certain order. The timing of things is very important and It’s also somewhere where if you don’t know…

Brenton Begley: Here.

Greg McIntyre: what you’re doing, you can get in a lot of trouble. And what I mean is, if you’re not filing certain things, and the right order at the right time, you will get a visit from a share. Serving you with a show cause motion to do whatever the court needed you to do. Yeah, and…

Brenton Begley: Yeah.

Greg McIntyre: and that’s and that’s not a fun situation to be.

Brenton Begley:  Yeah. And you know, we We talk a lot about, you know, avoiding court oversight and things like that.

Brenton Begley: And then it’s funny because you see some people trying to recreate the desire to have an oversight, have a very solemn process that must be gone through whenever they pass away to make sure that things are split correctly. And they,…

Greg McIntyre: It.

Brenton Begley: it may try to kind of go, you know, through all these steps to make sure there’s, you know, multiple trustees or beneficiaries can have this right to, you know, see an accounting or something like that. And then the day it’s like Well you might as well just have it all around it through probate anyway, you know, and really at a certain point there it could be in the best interest of the estate and the heirs to go ahead and have it routed through probate and rely on the will rather than trying to have. As an overall goal avoidance of probate, you know, that doesn’t apply to everybody. I think you have to be at a certain asset level for that to really be the case,…

Greg McIntyre: Here.

Brenton Begley: but it can certainly be helpful at that, high asset threshold.

Greg McIntyre:  I do not disagree and you know let’s talk a little bit more about trusting and trust administration specifically next week on the Elder Law. Report Brenton, I appreciate you being with me today on this great episode of the Elder Law Report 


Greg McIntyre
Estate Planning & Elder Law Attorney


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