During probate, a court oversees the distribution of a person’s estate. It can be a complicated process, but proper estate planning can help it go smoothly. Unfortunately, many people don’t take advantage of the estate planning options available to them.

According to a recent survey from Caring.com, only 44% of people aged 55 and older say they have estate planning documents. The percentage is even lower among younger age groups; only 22.5% of people between the ages of 35 and 54 have estate planning documents, and only 26.8% of people between the ages of 18 and 34 do.

Given these numbers, there’s a good chance you haven’t tackled estate planning yet. Or maybe you have, but not in a while. Either way, you might be setting your estate up for a probate disaster. To avoid major probate mistakes, you need to create a solid estate plan and update it whenever your situation changes.

You might be thinking that this is great advice – for other people. You might think you don’t need an estate plan. These three probate scenarios show why you really do.

Probate Mistake #1: Leaving No Will or Known Heirs

When a person dies intestate – that is, without a will – their property can pass to their heirs under the laws of the state. But what happens when a person has no known relatives? In that case, the estate may escheat to the state, which means the state government gets the estate.

For people without children, this is a real risk, especially if they’re an only child and have outlived their known relatives. Orphans who go through the foster system may also face this issue.

Sometimes, the person will know that their estate might pass to the state, but it can also be unexpected. What if, for example, you plan to give your estate to one person, but that person dies shortly before you do?

You probably don’t want your estate to go to the government, or to be stuck in limbo while distant relatives are located, and good estate planning can prevent these outcomes. If you have heirs and a will, you can add a total failure clause in case your heir’s predecease you. Even if you don’t have a family, you can plan how you want your money to be distributed. For example, you can create a will that names a charity as your beneficiary.

Probate Mistake #2: Dealing with a Disputed Claim

During the probate process, debts are paid, and the remaining benefits are distributed to the heirs. But what happens if someone comes forward and claims they are owed part of the estate? For example, someone might claim that they had a relationship with the deceased that the family didn’t know about. They might even have paperwork, such as a will, that they drafted and had the deceased sign shortly before their death.

When someone claims that the deceased had a secret life, getting to the truth of the matter can be difficult, or maybe even impossible. In some cases, a negotiation may seem like the best option, even if it means that someone doesn’t get what they’re really owed.

You may be able to avoid these problems by making your wishes known through estate planning, keeping your estate plan updated, and communicating your plan clearly with your family. Also, if someone in your family is elderly or terminally ill, watch out for people who might try to take advantage of the situation.

Probate Mistake #3: Real Estate Disputes

Fewer people are getting married. According to Pew Research Center, 46% of U.S. adults believe that couples who want to stay together long-term are just as well off if they decide not get married.

But what happens when two people live together in a house that one of them owns, and then the homeowner dies? The homeowner’s surviving family may feel the house is rightfully theirs – even this would require kicking the partner out.

The situation can become especially complicated when adult children from previous relationships are involved. Similar situations can also arise in non-romantic relationships, for example, when friends live together.

But once again, proper estate planning can prevent these issues. With the right estate planning documents, you can make your wishes for your house – including both tenancy and ownership – clear.

Are You Making Probate Mistakes?

Estate planning is a complicated area of law. Skinner Law can help you avoid probate mistakes. Contact us to learn more.


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Portland, OR 97225
Phone: (503) 719-6603