Here’s another story and another reason to avoid Probate. I was handling an out-of-state probate (I’m licensed to practice in Texas and a couple of other states) for my deceased cousin a few months ago. My cousin had been represented by another attorney in the preparation of his Will and had spent a good bit of money on legal fees in the process. (I would have advised against a Will and for a Trust instead!) After he passed away, his immediate family came to me for help with his estate and to probate the Will.
I began preparing the pleadings and the accountings and worked closely with my cousin’s family. We filed the original of the Will with the Clerk of Court, as we are required, and the Clerk acknowledged receiving it. Several weeks went by while we waited on the Court to “confirm” the appointed Executor. When it got to the point that it appeared that it was taking too long, (two months) we contacted the Clerk to see if there was a problem. The Clerk called us back and said that the original Will was missing from the Court’s records. The Clerk went on to say that since the Will was missing that we would have to re-draft and re-file our pleadings to change from a “testate” proceeding to an “intestate” proceeding (meaning without a Will). The Clerk told the family the same and they were inconsolable.
They knew how much effort and expense my cousin had gone to in preparing the Will. They also knew that if the Clerk was correct and the matter had to be re-filed as an intestate matter, that the law of descent and distribution would control, that his estate would be divided amongst many heirs rather than the few that had been named in the Will and that they would likely receive significantly less than my cousin had intended.
Fortunately, the Clerk was wrong in her opinion that we needed to re-file the matter, and, about two weeks later, the Will was found. It had been placed in another probate file by accident. We eventually worked through the matter but not before the family endured the additional worry of the lost Will and the fear of having to share my cousin’s estate with other heirs. If my cousin had relied upon a Trust instead of a Will for his estate planning vehicle, all the angst and all the probate expenses could have been avoided.