Tuesday, August 14, 2012

The Downside to Avoiding Probate

Probate, it is a word that causes the hair on the back of someone's neck to stand up.  But it shouldn't.  It is just probate. Sure, I am an estate planning and probate attorney, but I routinely see how fear of probate is used to sell people pricey trusts they most likely do not need.  Plus, avoiding probate can generate new problems.  If there is no probate, there is also no "dom letter".

The "dom letter", technically called the domiciliary letter, is an order issued by the court empowering the personal representative to handle an estate.  Essentially it give the personal representative (what Hollywood calls the Executor) authority to close accounts, pay bills, sell property, etc.

Just yesterday I saw a post on the attorney list serve -- how can we get the post office to change a decedent's mailing address when there is no dom letter?  The decedent had transferred all assets via beneficiary forms.  Likely thinking this will save money once I'm gone, the unexpected happens.  Without said letter mailing addresses can't be changed.  Good luck opening a safe deposit box.  Try and shut off the cable or cancel a cell phone. Sometimes a death certificate is enough, but more times than not it is insufficient.

Lawyers are trained to foresee problems, and this is one of them.  Avoiding probate can create more problems than it solves.  To be certain, seek the counsel of an estate planning and probate attorney in your area.

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