When starting out as a new attorney, I had the same assumption as many—that probate court was just a bunch of forms.  After having a few files of my own, I definitely learned otherwise. Here are some probate pointers for probating an estate:

  • Handling Money. Handling conservatorships, trusts, and decedent’s estates in probate court means handling other people’s money, which can get very messy, very quickly.   Not all families get along, especially when money becomes a factor. Provide adequate notice to all interested parties so that any objections can be made and resolved prior to distribution. Make sure that you are making wise financial choices when deciding where to invest assets, determining if a purchase is appropriate to make on behalf of an individual, whether distributions to heirs/devisees are accurate, and if you have taken into account any allowances (homestead, exempt property, family) for which some may be entitled.  If you are ever in doubt, get court approval for a financial transaction.  I have learned it is better to ask permission beforehand than to ask forgiveness after-the-fact.
  • Dealing with Creditors. Make sure you don’t forget about your creditors.  You must always publish notice to creditors on a decedent’s estate. The creditor period expires 4 months from the date of publication so it is wise to not distribute any funds until after this point because you never know who may be out there to file a claim.  Also, provide notice to any known creditors that may exist.  It is a good idea to ask family members if they have seenany bills being received or if they know what monthly bills the decedent paid to get an idea of known creditors.  You may want to have the decedent’s mail forwarded so you can see any bills that come in.  Once a creditor has filed a claim you can then either pay the bill or file a partial/full disallowance of claim.  If you choose to pay the bill, make sure you have them sign a satisfaction of claim to confirm payment was made.  If you decide to disallow the claim, keep in mind they have 63 days in which to file a lawsuit so it is best to wait until that time frame has expired before making any distributions. Don’t forget to confirm there are no outstanding funeral/burial expenses or Medicaid liens, both of which would have priority as creditors.
  • Court Appearances.  Probate Courts are much more individualized than other courts.  Many courts have their own method of handling hearings so it can be difficult to figure out at first, but there are things you can do to help prepare for the hearing.  Depending on the type of matter, the court may appoint a Guardian Ad Litem.  A Guardian Ad Litem is an attorney appointed by the court to act on behalf of a minor child or a protected individual.  Prior to your hearing, call the court and confirm if you have a Guardian Ad Litem appointed on your file and if so, contact them promptly. When you speak with the Guardian Ad Litem, make sure to present your role, ask if they have adequate information on the file, and request a copy of their report and recommendation prior to the hearing so you can be prepared.  If it is your first time appearing in that court, you may want to ask the Guardian ad Litem where you should check in (with the clerk’s office or Judge’s clerk) and if there is any other procedural information you should be aware of prior to the hearing.  If you do not have a Guardian Ad Litem appointed on your file and it is your first time in that specific court, try to be early for your hearing so you can check in with the Judge’s clerk prior to the start of the docket and then you can observe what goes on with some of the files which are called before your case. This will allow you to see where to present your case (podium or table), how to get your order entered, and whether you should take your file back to the clerk’s office for follow up or leave it in the court room.