Advance prep key to avoiding probate at worst possible time

METRO DETROIT — The last thing that a family wants amidst the passing of a loved one is to wind up in court. Figuring out how to share an estate is expensive, time-consuming, and complicated for many and probate court can lead to drama within a family unless the right steps are taken.

The most important step anyone can take to avoid probate court is to simply be prepared. It may sound fairly obvious, but making sure you have a will, trust, or some form of legal document involving your assets can go a long way in avoiding family tension.

“I’ve been practicing law for over 40 years. The best way to avoid the probate court is to prepare,” attorney Randall Shepard of Colbert, Shepard & Sadowski LLP said. “Talk to an attorney or talk to a specialist that can help you prepare your estate plan so that you don’t have to end up going through probate.”

There are several ways to organize assets in a way that prevents going to court. Trusts, ladybird deeds and wills can be simple ways to make sure your estate ends up in the right hands.

Probate also isn’t strictly used when someone passes away, as a lot of families find themselves in court for guardianship and conservatorship.

“Conservatorship is, of course, when the court oversees the management of somebody’s finances,” Shepard explained. “You really want to avoid that at all costs if you can. You’re better off having that set up ahead of time.”

In order to prepare in advance, one of the best things a person can do is have an expert in their corner. There are so many possible outcomes in probate and having a specialist to help with documentation that “speaks the language” is sometimes all a client needs.

“My advice is to get someone to help you. Don’t try and do it yourself,” Shepard said. “It can be a nightmare… Try to have an attorney that helps you resolve your case, not make it worse.”

Arguably the most common reason for probate is housing. Real estate is something that many families end up going to court over and it is an area of law that can get very complicated very quickly.

“Especially in real estate, you can encounter some family situations where it can be contentious,” Re/Max First certified probate specialist Ray Nadolski said. “Do you want sons and daughters to become enemies after you die? That’s the message I would send to people.”

A joint tenant, a trust or a will can help make the process easier for everyone involved. The best way to accomplish this is by working with someone in real estate that specializes in probate. In some cases, even with documentation, families find themselves in court because there are errors or missing statements from those involved.

“Some of the longest, most contentious and expensive probate battles come from unforeseen mistakes made by a person seeking to avoid probate,” Nadolski said. “I see a lot of issues in real estate… Do this just in case so it’s not all hearsay.”

Nadolski is now an expert in probate and has been working with former Macomb County Probate Court Judge Carl Marlinga to help make the transition of assets easier for families. Nadolski and Marlinga provided C&G Newspapers with a document that highlights important background information about probate and what advice they have after many years in the field.

The advice that is most commonly told from people that work in probate is about how to avoid it. As Nadolski and Marlinga explained, even a will that has been witnessed and notarized can still be subject to the jurisdiction of probate court. People will argue that the deceased may have been acting “under duress” or “undue influence.” Finding a lawyer that specializes in probate is the best court of action.

In the long run, planning ahead is also far cheaper than the alternative of probate court.

“The money you spend now would be less expensive than what your estate would have to spend if you don’t,” Shepard said. “It goes back to the theme of avoiding these problems.”

Perhaps the most important reason to get assets aligned and avoid probate is simply because it’s fair. The management of finances, housing or anything else should be decided by the owner of those assets while the person is still able.

“You’re better off spending the money now while the person is able to make the decisions of where they want their property to go,” Shepard said. “If you don’t have anything planned, then a judge makes the decision.”