03/16/2021
Complications of Probating an Estate With Only a Copy of a Decedent’s Will and How to Avoid Them.
This past year I experienced not one but two probate cases where the heirs or devisees could only find a copy of the decedent’s will. In both cases we had a photocopy of the original will. While a copy of a will can be submitted to probate, it does complicate matters and requires more time and cost than does filing an original will.
In most cases, a decedent’s will directs that their estate be probated informally meaning “unsupervised” by the probate court. Informal probate allows the personal representative (PR) also known as an executor, to process the decedent’s estate efficiently and as cost effective as possible in the shortest amount of time. However, when presenting a copy of a decedent’s will, one must file a Petition for Probate and/or Appointment of Personal Representative as opposed to an Application for Probate. The difference is that a petition requires a hearing before the court. The hearing, usually scheduled 4-6 weeks in the future, will establish that all parties agree this is the “will” of the decedent and they agree who should be personal representative. If they can’t agree, then the court will decide who will be the PR.
This scheduled hearing on the petition is the first of the delays caused by filing a petition for probate. Contrast when filing the original will and application for probate. The personal representative is given Letters of Authority immediately when the application is filed. This allows the PR to begin immediately to get into the decedent’s home, find records, financials, protect property, establish an estate bank account and notify creditors of the decedent’s passing.
Court rules require that all interested persons must be given actual notice of the petition, notice of the hearing, and proof of service must be filed so the court knows all parties have been notified and have an opportunity to attend the hearing and voice their approval or disapproval of the petition.
Another complication arose in one of the cases when it was found the decedent had a safety deposit box at a major bank and there was no other person with authority to open the box. This required us to file a Petition and Order to Open Safe-Deposit Box to Locate Will or Burial Deed and required another filing fee. Getting the judge to sign the order was not a problem but the bank (did I mention I hate dealing with banks) has their own policies and procedures. You would think it should be a simple matter to go to the bank with a court order in hand and have them let you get in the safety deposit box and look for a will. But no, the bank said they had to send the court order to their legal department at bank headquarters to be examined and approved by their lawyers (as if the bank lawyers could disapprove a court order). This delay took more than ten days before my client was allowed to get permission from the bank to open the box. And what did we find? The original will and prepaid burial deed!
After that, we had to file a safe box search certification signed by my client and two bank officers testifying as to what was found in the box. Note that the order to open the box only allows the petitioner to take a will and burial deed out. Anything else in the box stays there until the petitioner is appointed as the legal personal representative. Then, he or she has to make another trip to the bank to clean out the box.
Now let’s deal with the real estate. In both my cases, because they were formal probate, the Letters of Authority came with a restriction: “The Personal Representative shall not sell any real estate of the estate without further order of the court.”
In both my cases the decedent was the only person listed on the deed. There was no other document executed to transfer the property to another person. What were we to do? Yes, you guessed it: file another petition. This one for approval to sell real estate. Once again, we had to pay a filing fee, get a hearing scheduled out a month, give notice to all interested parties and have the hearing. However, prior to the hearing, we had to find a buyer, get a purchase agreement, get a professional appraisal, get the house/condo cleaned out, painted, etc. Then, when everything was submitted to the court prior to the hearing and approved after the hearing, we got the order to sell the property.
In one of the cases, the judge ordered appointment of a GAL (guardian ad litem), who is a lawyer, to investigate the sale of the property and make a recommendation to the court to approve or disapprove the sale. This cost the estate another $750.00 to pay the GAL fee.
So, how do we un-complicate probate? If possible, let’s avoid it if we can. Let’s be clear, probate in itself, is not a horrible thing to go through. It can be time consuming, and frustrating if one attempts to go it alone without the assistance of legal counsel. But, it exists to provide a way to disperse a decedent’s property to rightful heirs or devisees in the absence of planning. Also, it is not terribly expensive to probate an estate. However, it is more expensive than proper planning. With proper planning, money, real estate, personal property, can be transferred to others without the need for probate.
In the cases above, if the decedents had previously executed deeds to transfer real estate after their deaths, there would be no need to go to court. If the decedent’s had another person named on the safety deposit box, there would be no need to go to court and deal with the bank red tape. If the decedents had listed a POD (payable on death) on their bank accounts, there would be no reason to go to court.
Most important, if the decedents had put their original wills where someone could find them, their estates could have been probated without formality and court hearings. This alone would have saved much time and cost.
