Most people have an absolutely incorrect understanding of what is involved in probate, what a will actually is, and what the terms used in probate mean. These simple rules should help to develop at least a basic understanding of what is involved in probate matters.
Basic Concepts of Probate
- A will is nothing more than a piece of paper until a court says different.
- Being named as executor in a will doesn't give you any powers, not until a court formally appoints you as the executor.
- Being named as an heir in a will doesn't actually give you any property or any interest in property, not until the court says it does.
- A Power of Attorney can no longer be used after the moment of death. Just because you had a power of attorney given to you by the deceased it does not mean it can be used for any purpose whatsoever after they die and doing so or attempting to do so can result in serious trouble for you.
- Once an executor is appointed by the court, their duty is to the estate and the court, not to the heirs.
- The executor does not have to provide information to the heirs unless the court says they do.
- The executor does not have to dispose of property as the heirs would like.
- The attorney for the estate is not the attorney for the heirs and owes them no duty. If the heirs want to bring an issue to the court, then they need to hire their own attorney.
- While anyone can challenge a will, doing so just because you don't like the way the property was bequeathed is usually not a good enough reason to win.
- Many people think family law is the most bitter kind but it is not. Probate law results in more hard feelings and bitter disagreements.
- Probate law is one of the areas where a person can usually not represent themselves effectively. The laws are antiquated, difficult, and often make no sense.
- In probate law an executor can be held personally liable and they have a duty to be conservative and do only what is in the best interests of the estate without regard to the heirs.
- When in doubt about the correct path, the executor should always ask the court for permission to proceed in a certain direction.
- The attorney for the estate is usually paid by the estate at some point so the more work the heirs cause the attorney to do then the less assets that will go to the heirs at the end of the case.