FAQ

WHEN IS PROBATE NECESSARY?

With respect to a decedent, when an asset is titled in one name alone, with no beneficiary designation, the title is "frozen" in the decedent's name. The court must be petitioned to transfer title to beneficiaries, under the Will or, if there was no Will, under the "intestate succession" law of the state of the decedent's domicile. For example, when Mom passes owning the house title (from the deed 30 years ago) in the names of "Mr. and Mrs. William Smith" and Dad previously passed, the title is owned by Mrs. Smith alone. Thus, nothing can be done to transfer the title or sell the property in one name alone, since the owner is deceased; thus, court authority is needed to transfer title.

With respect to a disabled/incapacitated person, an asset titled in that person's name alone cannot be managed without obtaining authority from the court, so that a "conservator" is appointed to manage that asset/assets. However, if a durable power of attorney for finances was signed, presumably the agent under that power of attorney document may manage the asset/assets, without the court.

With respect to an incapacitated person, if there is no medical durable power of attorney, the court will authorize the appropriate person, to make decisions.

With respect to estate planning, the preference is to avoid probate. However, a standard way to avoid the probate court is to plan a trust, which involves a trust document and transferring each asset out of the current title and into the name of the trustee under the recently signed trust. This process is not difficult, but most people consider this transferring of title of each asset as somewhat demanding and time consuming. So rather than deal with difficulties of this nature, some individuals prefer to have the traditional Last Will and Testament be the primary document of their estate planning and if a person's assets pass under the Last Will, probate is required.

DO I HAVE TO APPEAR IN COURT?
As to Estate Planning, no.

As to court appointment of a Personal Representative for a decedent, usually no, but it depends on the circumstances. In any event, the lawyer will have to file papers in court for the client.

As to appointment of a Guardian or Conservator of an incapacitated or disabled person, yes.

HOW LONG WILL THE PROCEEDINGS TAKE?
Estate Planning may be concluded within a month, but it depends on the circumstances/needs.

Administration of a decedent's estate starts with the appointment of a "personal representative" formerly called "executor" (although the change is purely only in name). The conclusion of a full estate administration will usually require about nine months, but sometimes, especially if the assets are not substantial, a period of possibly two months may apply.

With respect to administration of a disabled person's conservatorship estate, the appointment of the conservator may occur within one month, but emergency circumstances can push matters forward. The conservator will serve usually until the passing of that disabled person, unless the individual is "restored" by the court.