Hello, and welcome back to another episode of the Estate Planning Podcast. I’m your host, Colby

Kukelski. This week’s episode we’ll be discussing something you may be familiar with or something you

may not, which is probate. Now, last week, I mentioned that if you’re using a Will, as an estate planning

tool, that that Will must be probated. So I always get the question of what is probate? And why would it

impact me, and I’m here to tell you that probate may not be something that is as straightforward as it

sounds. I will say that today’s conversations going to be based on South Carolina and Georgia law, since

that’s where I’m licensed. Each state has their own probate rules, and each state probate looks different.

So and in mentioning that, let’s get started.

Probate is the process of having a judge validate your will. Now, if you’re recall from our last

conversation regarding Wills, a Will is a document you have drawn up during life that designates where

your assets go, but requires probate. So what does that mean? If you’re using a Will, yes, you get to say

where your stuff goes and who you would want it to go to. But that Will must be validated after you’ve

passed away. So what does that mean? Essentially, a judge is going to determine whether your Will is

valid or not. In making that determination, the court is going to require some things you wouldn’t

typically think that they would. What I mean by that is the court is going to ask certain people, what

they think about your Will and its validity.

Now, let’s take our typical example, a Will says you know, everything goes to my spouse, if not my

spouse, then my children. In determining whether that Will is valid, the court is going to ask your spouse

what they think about your Will, and the court is also going to ask your children. Now remember, your

children aren’t inheriting anything because everything goes to your spouse. But because your children

are your heirs, they have the legal ability to have an opinion on your Will. Usually this isn’t too ba

d of a

thing. Usually the children are okay with you know, your surviving spouse getting everything. But there

could be situations where maybe we don’t want them having a say so in our Will, maybe it’s an

estranged child, or maybe it’s someone we just don’t really have a close relationship with who we’re not

leaving anything to. But when it comes to probate, they still have the ability to have a say so and what

your Will says. So in them having the ability to have a say so and what your will says what probate can

really turn into is a hearing to accept any arguments to your Will. All someone has to do is say, well, I

don’t agree with the terms of the Will or I want to fight the Will. That turns the probate process into a

contested situation. In dealing with a contested situation regarding probate, it’s going to cost you know,

time and money. This is all at a time where you’ve just lost a loved one, and now you’re having to try to

get this Will deemed as valid in the court. It’s not likely to occur in each and every situation

. But in going

through the probate process, we are essentially opening the door to hearing any and all complaints

regarding the Will. It’s not something that a surviving spouse or grieving children should have to go

through at that point in time. Where we really can see these issues is you know, regarding the children,

mom and dad have both passed away and now the will says everything equally splits between the three

kids. You may think your children won’t argue among themselves, but I’m here to tell you anytime

there’s just a little bit of money involved. It’s very difficult to keep your feelings intact, so going through

the probate, they’re having to work together, they all get a say so and what happens regarding the Will,

it’s not really a time you want to have the kids argue between themselves. But because we’re having to

go through the probate process and involving the court determining whether that Will is valid, it may be

a time where their emotions get the best of them.

Now, there are situations that make probate even more complicated. I’ll give you a quick example from

a former client of ours, this individual passed away. He had never married, he had never had any

children and he had a Will that left everything to a nephew. So who are we involving in that probate

process? Because he had no spouse, and no children, we had to look for his closest heirs at law. Now

remember, he left everything to that one nephew. But because of the courts requirement, we had to

notify all of his closest heirs of the probate process occurring, and you know, offering them a say so and

how the probate was to turn out. In this situation, his closest heirs would have been considered his

siblings, but a lot of his siblings had pre deceased him. So we were contacting other niec

es and

nephews, because they were in fact, his closest heirs at law. This is, you know, seven or eight different

people across the country, we’re having to contact notify the probate proceedings, and again, they’re

not getting anything, but because they were considered this man’s closest heirs, they had to be notified

and they had a legal right to be involved in the probate process. That particular case is took you know,

longer than a typical probate would, and cost more than a typical probate would cost all because we are

having to track down these other heirs and have their involvement in the probate process.

Now, that’s not the only time probate can really turn into a hassle. Let’s again say that you’ve left

everything to surviving spouse, if not your spouse, then your children. What happens if those children

are minors under the age of 18. They don’t have the legal ability to defend themselves essentially in

court and have a legal say so. So what the court will do is appoint someone to represent their interests.

This person is typically known as a Guardian Ad Litem and that person may be another licensed attorney

or may be another trained individual. But what their role is, is to essentially represent that child in the

probate proceedings. Now, again, when you’re involving a minor, they don’t they don’t have the ability

to inherit. So what happens with the assets that they’re supposed to be getting from your Will? The

court will actually have oversight over these assets and the use of these assets for that minor child until

they’ve turned 18. So really, anytime we’re having to involve a minor, this increases court costs, it

increases the time involved with the court itself. It’s not something again, you’re typically wanting to do

when you’ve just lost a loved one. However, anytime a minor is involved, just because they’re minor

doesn’t mean they don’t get a say, they do. It’s just through that advocate for them or a Guardian Ad

Litem.

So in conclusion, anytime you’re using a Will, that Will must be probated. What probate is considered is

essentially asking a court to determine whether your Will is valid or not. In making that determination,

the court is going to invite some people to have a say so in your Will, and th

at is anyone who is

inheriting from your Will, or anyone who could have inherited or your other heirs. This really can get

complicated, quick. So typically when people come in to see us, the question we get most often asked is

how do we avoid probate? We don’t want our grieving spouse or our grieving children to have to worry

about going before the court and you know getting this Will validated. How can we get around to doing

that? How can we do the work ahead of time?

So join us back here next week, we’re going to talk about some alternatives to probate and how we can

get around probate and make things as easy as possible and your family. I’ve enjoyed having you listen

this week, I’ll see you back here next week.

The post Estate Planning – Wills, Probate and How to Avoid Probate first appeared on The Estate Planning Podcast.

The post Estate Planning – Wills, Probate and How to Avoid Probate appeared first on The Estate Planning Podcast.