Mark Mackin, Attorney at Law in Montana
Understanding Probate. Most often, a relative of the deceased is appointed as the Personal Representative* in the will. This is an office of trust and responsibility, but administrating an estate is often challenging, especially so for someone feeling emotional stress and grief. Dealing with creditors and relatives while settling the estate is often difficult. An attorney can assist by filing notices and documents for the Personal Representative, and help mediate conflicts about inventory and distribution.
In Montana, estates that include interests in real estate must go through probate. “Interests” means any ownership or right to use or profit from real estate, and may include easements. There are ways to avoid or limit probate – see Wills and Estates on this website.
Avoiding probate court may not be the best idea. A person may want to avoid expensive lawyers or court expenses that may drain the estate. In Montana attorneys are held to high standards, and the filing and notice fees are reasonable. Trying to avoid probate when the estate owes taxes, debts, or includes real estate is a serious and perhaps costly mistake.
A Personal Representative (P.R.) who wants to avoid probate should seek advice well in advance. The P.R. becomes a fiduciary upon appointment. This creates a strict standard of legal responsibility and accountability to others. The P.R. is liable for significant mistakes in administration. Mistakes may cause the estate to be distributed in a manner not intended by the deceased.
If the estate is large or complicated, with different property types or several heirs, then probate may actually be helpful. Especially so if creditors or heirs and devisees object to the decisions of the Personal Representative. An attorney who understands the process from beginning to end can shield the Personal Representative from bogus claims or lawsuits. Once the court approves the attorney’s Notice of Closing, the P.R. can be confident the process is complete.
The heirs, devisees, or creditors who believe their interests are being overlooked during administration of the estate may benefit from representation. Many wills include spendthrift provisions or disinherit anyone who objects to the will or trust. Disinheriting provisions are intimidating and they may not be legal. Also, wills may be made by persons who lack the capacity to make a will or are under the influence of another. Some legal advice from an attorney could make considerable difference in the outcome. At the least, legal advice may provide peace of mind.
*A Personal Representative is known as an Executor in other states.
Please contact Mark Mackin, Attorney at Law in Montana for your estate planning needs.