PROBATE LAW

What is Probate One way to explain the concept of a probate matter is that when a person is no longer capable of handling his or her affairs, then someone else must come forward to handle it. A Court is the only authority that can appoint this Someone Else to act. Examples: the law says a child cannot hold property or make a contract- if he comes into some property, he must have a Guardian for his property appointed; an elderly gentlemen cannot recall where he lives, or who his family members are because of dementia - he needs a Conservator appointed; when a person dies, she must have an Administrator appointed to wrap up her personal business, pay her debts, and distribute what is left to her family members (or persons named in her Will). A Guardianship, a Conservatorship, and an Estate are all probate matters.

When a Death Occurs, Everything Changes. The only thing that matters is what is in writing. And even then, the writing only matters once a Judge proclaims it valid.

               So, Dad always said you would get the house? Hopefully, there’s a document that says so. Mom left everything to the responsible sibling to divide up among the others? You should hope that the responsible sibling’s husband isn’t undermining that moral obligation, or that there’s not a rift after the funeral – the sibling can change her mind despite Mom’s “wishes”. Maybe the person named Executor in a Will tries to handle all of the directives without the expense of a lawyer or going to probate – egads! That’s not only ill-advised, it is illegal, as a Will must be brought before a Judge to be effective. These examples may seem unlikely, but they happen. When a death occurs, everything changes. Including the conduct and relationships of the survivors. Sometimes, frankly, Court oversight is the best assurance that family members and beneficiaries have that the law is being followed.

Executor, Administrator, Personal Representative – What? Using traditional legal definitions, an Executor is a person named in a Last Will and Testament to “execute” the terms of that Will. If an individual dies without a Will, the Court procedure is largely the same. State Law takes the place of the Will – and the person appointed to handle that procedure is called an Administrator. That makes some sense, as there’s no Will to execute. A Personal Representative “Personal Representative” is a modern term intended to alleviate confusion and cover all instances of one person handling another’s affairs with Court authority. As you might guess, adding another term hasn’t alleviated much confusion. One good thing, though. “Co-Personal Representatives” is much easier to say, and write, than “Co-Adminstratrices” (the plural of the feminine “Administratrix”).

Contact Dan if you need assistance in opening a probate matter in Court, or to discuss an active probate matter that may affect your rights as a beneficiary.

Information provided on this website is only legal information and should not be considered legal advice. 

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