“I thought if I wrote a Will my family could avoid Probate!”

Last year when I was talking with my husband about dealing with Probate Court regarding my Uncle’s Estate – since my Uncle’s family wouldn’t know where to begin or what to do – my husband said to me:

I always heard that if you wrote a Will then Probate Court could be avoided.

I was surprised to hear this. But the more I’ve spoken to people the more I’ve learned this is what people have come to believe.  This is totally inaccurate information.  A family of a recently deceased person CANNOT avoid Probate Court simply because the person did leave a Will – containing specific instructions about their Estate.

First, an Estate is defined in layman’s terms as all of that person’s assets at the time of their death. This includes all of the following:

  • Money in bank accounts
  • Cars
  • Houses
  • Furniture
  • Clothing and shoes
  • Jewelry
  • Cameras
  • Books
  • Other personal belongings and more….

Second, Probate Court is a specific division of the Courts that handles the proper distribution of an Estate (someone’s assets) upon their death whether by enforcing a valid Will or by following Intestate Succession Rules (statutory rules that must be followed because the deceased person did not have a Will or a valid Will). Probate Courts also prevent the mishandling of an Estate, oversee the handling of the Estate and distribution, makes decisions as to whether a person’s Will is valid or not, and also handles creating Special Needs Trusts.

Back to my story: I was discussing with my husband that when I opened my Uncle’s Estate (this is what they call the procedure) with the Probate Court I learned that although my Uncle had a Will – which I presented to the Court – it was not valid because I did not have the “blue ink” signed original.  All we could find — among the many piles of papers the family and I went through in the house — was 2 copies, signed, notarized and witnessed.

Lesson 1: Make sure you leave your “blue ink” signed original Will well stored so family can find it EASILY & QUICKLY . You may want to keep it in a safety deposit box with other key documents, like birth certificates, Trust documents, items that are hard to replace.  You might want to leave it with the lawyer who drafted it and simply leave a notation in multiple locations — like your address book, a journal, an email you send to key family members or friends — as to who to contact to obtain the original will.

The odd part to me about finding my Uncle’s Will and it not being valid is that when I asked to be appointed as my Aunt’s personal representative to wrap up her Estate in the Probate Court — since my Uncle started it but didn’t finish it — I discovered that her Will submitted to the Court and accepted, was a copy.

Lesson 2: “It never hurts to ask.”  When you find any important documents among someone’s belongings keep them all as you never know if you might need it or can use it.  Maybe my Uncle submitted the copy of my Aunt’s will to the Clerk and it made it into the file with no one noticing it was not an original….  Maybe the judge accepted it because he stated he diligently looked for the original and could not find it but that this copy was identical to the original… I’ll never know. 

Lesson 3: Don’t assume because the person wrote a Will that it is valid or that you don’t have to Open a Probate case. 

Another reason for opening a Probate case is to allow creditors of the deceased to submit their claims to the Estate and allow the Court to make sure those creditors should rightfully be paid rather than letting the family simply pay a debt without knowing whether the debt is valid and collectable.  Once the Probate Court closes an Estate creditors can no longer make claims to the Estate. They missed their chance.

With my Aunt’s Estate the Probate case remained opened for about 24 months — longer than typical on a simple, small Estate mainly because my Uncle didn’t complete tasks once he opened it.

With my Uncle’s Estate, it will remain open for a minimum of 14 months from the date of his death.  I opened it in June 2015 after he passed in April 2015.  I should be able to close it fully in June 2016 as no creditors have made any claims.

Lesson  4: It pays to act promptly and  efficiently. If need be talk to a lawyer about opening a  Probate case or at a minimum ask questions of the Clerk of the Probate Court, see if there is a free help desk to obtain directions from.

I will try to add to this Post links to public information for point of reference.

4 Replies to ““I thought if I wrote a Will my family could avoid Probate!””

  1. Love this post! I run into this with clients (and friends) all the time. I’m not sure where everyone got this idea… The only way to truly ‘avoid probate’ is having all of your property pass outside probate (property held in joint tenancy, named beneficiaries in life insurance policies, etc.). Then you can just file a small estate affidavit (in Illinois at least) and be done with it. But that doesn’t happen too often!

  2. This is an instructive cautionary tale for those of us representing estates and for paving the path for those who will represent our estates.

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