Firm News - Blutter & Blutter

How to Avoid Common Probate Mistakes

Posted by Arthur Blutter on Mar 7, 2013 9:50pm PST

Probate is a term that is used to describe the method by which an estate is administered and processed through the legal system after one dies. This process was created to help transfer estates in a supervised and orderly manner, and this process must be closely followed in order for beneficiaries to receive their inheritance. Probate is sometimes referred to as the “script” that guides the moves involved with transferring an estate, and you should know and thoroughly understand what this script says in order to avoid some of the damaging probate mistakes that are made.

Some people assume that you will avoid probate without a will, but this could not be further from the truth. The probate process will happen regardless of whether or not you have a will, and failure to create a valid will simply means that your wishes may not be fully granted after you have passed away. For example, if you die intestate (without a will) or if only part of your estate is covered by a will, the laws of your state will determine what parties get certain part of your estate and assets. One of the most common mistakes made when preparing for probate is a failure to take into account your entire estate.

It is critically important to account for everything and to understand and dictate how your assets will pass to your heirs through your will. During this process, it may be helpful to draw a flow chart to help you visualize where and how your assets will pass to your heirs, and our firm will also help you consider all of the jewelry, collections or family heirlooms that you want to pass on. By helping you to thoroughly review your assets, including any oil, gas or mineral rights you may own, a skilled Long Island probate attorney can ensure that your estate is in proper order so that you have peace of mind.

One of the other common mistakes that people make in planning for probate is forgetting to plan for incapacity. This can be a sensitive and unpleasant issue to discuss, but there is always a chance that you may become incompetent at some point down the road. When you forget to take this into consideration, your children or other heirs have to go through the court proceeding known as guardianship. Guardianship is the right to act on the behalf of another individual and to make decisions regarding that individual’s financial and healthcare needs. Instead of putting your loved ones through an unnecessary formal court proceeding, you can make the decision about who will act on your behalf in the event of your incapacity by including it in your estate plan.

Lastly, the failure to create a Living Will is perhaps the most devastating and costly probate mistake that can be made. The living will was created as a way for individuals to express their health care desires when they are no longer able to express their current health care wishes. The living will usually provides specific directives about the course of treatment provided by caregivers and health care provides, and can be very specific or very general in nature. The living will is particularly important in the event that you become incapacitated in the future because it allows you to decide whether or not you want to receive food and water if it is supplied via tubes or other medical devices. By completing this one form, you can clarify your wishes for the end of your life and appoint one or more individuals who you trust to carry them out.

Here at Blutter & Blutter, it is our desire to help you create the best estate plan in a timely and organized manner. Our Long Island probate attorneys know how to represent your rights in and out of probate court, and we will fight aggressively for the outcome you deserve!