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Hello, and welcome back to another episode of the Estate Planning Podcast. I’m your host, Colby
Kukelski. This week’s episode we’ll be discussing something you may be familiar with or something you
may not, which is probate. Now, last week, I mentioned that if you’re using a Will, as an estate planning
tool, that that Will must be probated. So I always get the question of what is probate? And why would it
impact me, and I’m here to tell you that probate may not be something that is as straightforward as it
sounds. I will say that today’s conversations going to be based on South Carolina and Georgia law, since
that’s where I’m licensed. Each state has their own probate rules, and each state probate looks different.
So and in mentioning that, let’s get started.
Probate is the process of having a judge validate your will. Now, if you’re recall from our last
conversation regarding Wills, a Will is a document you have drawn up during life that designates where
your assets go, but requires probate. So what does that mean? If you’re using a Will, yes, you get to say
where your stuff goes and who you would want it to go to. But that Will must be validated after you’ve
passed away. So what does that mean? Essentially, a judge is going to determine whether your Will is
valid or not. In making that determination, the court is going to require some things you wouldn’t
typically think that they would. What I mean by that is the court is going to ask certain people, what
they think about your Will and its validity.
Now, let’s take our typical example, a Will says you know, everything goes to my spouse, if not my
spouse, then my children. In determining whether that Will is valid, the court is going to ask your spouse
what they think about your Will, and the court is also going to ask your children. Now remember, your
children aren’t inheriting anything because everything goes to your spouse. But because your children
are your heirs, they have the legal ability to have an opinion on your Will. Usually this isn’t too ba
d of a
thing. Usually the children are okay with you know, your surviving spouse getting everything. But there
could be situations where maybe we don’t want them having a say so in our Will, maybe it’s an
estranged child, or maybe it’s someone we just don’t really have a close relationship with who we’re not
leaving anything to. But when it comes to probate, they still have the ability to have a say so and what
your Will says. So in them having the ability to have a say so and what your will says what probate can
really turn into is a hearing to accept any arguments to your Will. All someone has to do is say, well, I
don’t agree with the terms of the Will or I want to fight the Will. That turns the probate process into a
contested situation. In dealing with a contested situation regarding probate, it’s going to cost you know,
time and money. This is all at a time where you’ve just lost a loved one, and now you’re having to try to
get this Will deemed as valid in the court. It’s not likely to occur in each and every situation
. But in going
through the probate process, we are essentially opening the door to hearing any and all complaints
regarding the Will. It’s not something that a surviving spouse or grieving children should have to go
through at that point in time. Where we really can see these issues is you know, regarding the children,
mom and dad have both passed away and now the will says everything equally splits between the three
kids. You may think your children won’t argue among themselves, but I’m here to tell you anytime
there’s just a little bit of money involved. It’s very difficult to keep your feelings intact, so going through
the probate, they’re having to work together, they all get a say so and what happens regarding the Will,
it’s not really a time you want to have the kids argue between themselves. But because we’re having to
go through the probate process and involving the court determining whether that Will is valid, it may be
a time where their emotions get the best of them.
Now, there are situations that make probate even more complicated. I’ll give you a quick example from
a former client of ours, this individual passed away. He had never married, he had never had any
children and he had a Will that left everything to a nephew. So who are we involving in that probate
process? Because he had no spouse, and no children, we had to look for his closest heirs at law. Now
remember, he left everything to that one nephew. But because of the courts requirement, we had to
notify all of his closest heirs of the probate process occurring, and you know, offering them a say so and
how the probate was to turn out. In this situation, his closest heirs would have been considered his
siblings, but a lot of his siblings had pre deceased him. So we were contacting other niec
es and
nephews, because they were in fact, his closest heirs at law. This is, you know, seven or eight different
people across the country, we’re having to contact notify the probate proceedings, and again, they’re
not getting anything, but because they were considered this man’s closest heirs, they had to be notified
and they had a legal right to be involved in the probate process. That particular case is took you know,
longer than a typical probate would, and cost more than a typical probate would cost all because we are
having to track down these other heirs and have their involvement in the probate process.
Now, that’s not the only time probate can really turn into a hassle. Let’s again say that you’ve left
everything to surviving spouse, if not your spouse, then your children. What happens if those children
are minors under the age of 18. They don’t have the legal ability to defend themselves essentially in
court and have a legal say so. So what the court will do is appoint someone to represent their interests.
This person is typically known as a Guardian Ad Litem and that person may be another licensed attorney
or may be another trained individual. But what their role is, is to essentially represent that child in the
probate proceedings. Now, again, when you’re involving a minor, they don’t they don’t have the ability
to inherit. So what happens with the assets that they’re supposed to be getting from your Will? The
court will actually have oversight over these assets and the use of these assets for that minor child until
they’ve turned 18. So really, anytime we’re having to involve a minor, this increases court costs, it
increases the time involved with the court itself. It’s not something again, you’re typically wanting to do
when you’ve just lost a loved one. However, anytime a minor is involved, just because they’re minor
doesn’t mean they don’t get a say, they do. It’s just through that advocate for them or a Guardian Ad
Litem.
So in conclusion, anytime you’re using a Will, that Will must be probated. What probate is considered is
essentially asking a court to determine whether your Will is valid or not. In making that determination,
the court is going to invite some people to have a say so in your Will, and th
at is anyone who is
inheriting from your Will, or anyone who could have inherited or your other heirs. This really can get
complicated, quick. So typically when people come in to see us, the question we get most often asked is
how do we avoid probate? We don’t want our grieving spouse or our grieving children to have to worry
about going before the court and you know getting this Will validated. How can we get around to doing
that? How can we do the work ahead of time?
So join us back here next week, we’re going to talk about some alternatives to probate and how we can
get around probate and make things as easy as possible and your family. I’ve enjoyed having you listen
this week, I’ll see you back here next week.
