More Probate, Anyone?

Most of our estate planning clients tell us they don’t want their estates to be subject to probate following their deaths. They’ve either experienced the probate process themselves or they’ve heard about it from others, and they know post-death probate to be expensive, time-consuming, and usually slow. Avoiding post-death probate is perhaps the primary reason most of our clients choose estate plans that include a living trust.

It’s the rare client, however, who comes to us knowing that a good estate plan can also avoid probate while they are alive. Lifetime probate most often happens when an individual can no longer manage their affairs but doesn’t have general powers of attorney in place empowering others to handle financial and other matters for them. In that case, the probate court takes control and will appoint a conservator, accountable to the court, to manage the individual’s assets and expenses. Conservatorships are expensive undertakings, requiring detailed annual accountings and court hearings to approve those accountings.

Effective this summer, a new state law is making the process even a little more expensive and cumbersome for conservatorships that include real estate. Under the new law, a conservator cannot dispose of a protected person’s real property without prior court approval. Further, the court can give its approval only following a court hearing and after reviewing a survey prepared within the preceding six months by a licensed appraiser. If the real property is being sold for less than the appraised value and is the protected person’s principal residence, then the record of the hearing must include an explanation of why the sale is in the protected person’s best interest.

If you would like to learn more about avoiding lifetime and post-death probate, you can reach the Wright Beamer estate planning attorneys at 248.477.6300.