Law FAQ: What is living probate?

If you can’t conduct business due to mental or physical incapacity (dementia, stroke, heart attack, etc.), only a court appointee can sign for you – even if you have a will.  Remember, a will only goes into effect after you die.  Once the court gets involved, it usually stays involved until you recover or die and it, not your family, will control how your assets are used to care for you.  This public, probate process can be expensive, embarrassing, time consuming and difficult to end.  It does not replace probate at death, so your family may have to go through probate court twice!

In some cases, a durable power of attorney may prevent the lifetime probate process.  A durable power of attorney lets you name someone to manage your financial affairs if you are unable to do so.  However, many financial institutions will not honor one unless it is on their form.  If accepted, it may work too well, giving someone a “blank check” to do whatever the agent wants with your assets.  It can be very effective when used with a living trust, but risky when used alone.

Please contact our office if you have questions about the living probate process or if you wnat more information on strategies to avoid the process.

2 Comments
  • Debra

    December 22, 2012 at 3:17 pm

    My aunt died in 2002. i was told by her stepdaughter that I was left 10,000 dollars. I havnt seen any of it. What could have happened? Thanks

    • LarryBray

      January 18, 2013 at 11:26 am

      When a specific bequest is made in a Last Will & Testament, the Probate Court process ensures that all distributions are made. Before a Probate estate can be closed, the Executor must file a signed receipt (and sometimes a waiver of accounting) from each beneficiary entitled to a distribution. The Executor will not be discharged from service until all Probate formalities are completed and approved by the Probate Court. But if the distribution were made by a beneficiary designation (such as on a life insurance policy, retirement plan or transfer/payable on death registration), the company (or custodian of the asset) can make a direct distribution to the beneficiary without being subject to the Probate Court process.

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