Most people don’t know what probate is but they know that they don’t like it. They know that they should be afraid of it and try to avoid probate at all costs.
This fear of probate has come about recently because of some individuals or groups trying to sell people, mostly seniors, trust forms or packages. The best, surefire way to sell a senior something is to make him afraid. So these individuals or groups try to scare seniors about probate in order to sell the seniors their trust forms or some similar package that they claim will avoid the dreaded probate. They come into a town and send out invitations for a free dinner or a free lunch and try to sell these packages. In truth, the seniors end up paying these groups much more than they would ordinarily pay a lawyer for helping them with probate.
In this first part of a series of posts dealing with probate, I want to go over the probate process and tell you why we have it and what it does. When a person dies (the decedent), his property passes to somebody. Who does it pass to? If he has a will, his property passes to whoever he gives it to in his will. If he doesn’t have a will, his property passes to his heirs as defined by state law. So how does the public know to whom his property passes? By probate! Probate in its basic form is just the means to notify the public who gets legal title to the property of the person who has died. It is the official notification, so to speak.
One of probate’s functions is to ensure that there are no breaks in title to property. If a title examiner is researching the title to a piece of property and the deed records show that the property was in the name of the decedent but that someone else (his wife or children) are trying to sell it, his first question will be, ‘why isn’t the title holder signing the deed’ because he doesn’t know that the titleholder is dead and he just sees a break in the title. Even though the (wife or children) tell the examiner that the property is theirs, the examiner needs some legal papers to show ownership. Probate cures that problem and shows that legal title has passed from the decedent to (his wife or children) through the probate proceeding and the title examiner will be able to approve the title.
In the next part of “How I learned to stop worrying and love probate,” I’ll discuss the problems that can arise when someone uses these preprinted trust forms without the assistance of a lawyer.