After you have died, you want to be able to leave your assets and possessions to those you love in the least complicated way possible. You do not want your loved ones to go through additional heartache or distress.
They already are having to come to terms with your death, and now, they may have to go through the lengthy and arduous process of probate court.
Probate is the legal process a court takes to conclude an individual’s legal and financial matters upon death. During this process, the court ensures that all outstanding debts, legal fees, and taxes are paid and that all assets have been catalogued and appraised before being distributed.
When you are going through this challenging process, you need the assistance of an elder law attorney, who can help you navigate the ins and outs of probate over the months that it may take to complete.
For some, the probate process does not begin after you die. For some, it starts before.
Betty Lou Lamoreaux was the first female Superior Court Judge for Orange County, Calif. She was appointed to the municipal bench in 1974 and was a fierce advocate for children’s rights, according to the Orange County Register.
Lamoreaux died at the age of 94 on Nov. 30, 2018, after grappling with Alzheimer’s. In the last years of her life, she was stuck in the middle of a conflict between relatives, as to how to best take care of her.
Her nephew, Duff McGrath went to probate court in 2015, attempting to separate her from family members that he felt would do her harm, as well as move her out of her Newport Beach home that had fallen into disrepair.
During the repairs of her home, McGrath moved Lamoreaux into a senior living center, and the courts responded by appointing an attorney and a guardian to represent Lamoreaux. They believed that Lamoreaux wanted to move back into the home that she shared with her sister.
A judge agreed, forcing McGrath to hire his own legal team, believing that the care that the senior living facility provided was necessary. This added additional lawyers and a fiduciary into the mix, causing bills to skyrocket.
During all of this fighting, aspects of Lamoreaux’s life needed adjusting. She needed a replacement wheelchair, and her conservator waited four months to award a new chair, which did not fit and quickly broke.
With her death, questions began to surface regarding the legal fees attached to the extended probate process, as well as the rest of the estate. McGrath still is fighting another faction of the family, in order to secure the estate. Meanwhile, legal fees continue to mount.
This case illustrates some of the most challenging aspects of the probate process. As you get older, you may find yourself in a position where family members are in conflict over what you need. They may think you need assistance in aspects of your life that other family members may disagree with.
You may not have as much say in all of this as you would like, which is why it is important to have a plan in place beforehand. You need to make sure that your estate plan is well thought out, and that starts with a Power of Attorney.
A Power of Attorney document is a written authorization that allows the named principal to formally appoint a trusted individual to make decisions and take action on their behalf. There are different types of Powers of Attorney, and you also get to customize the scope of power, in order to suit your unique situation.
In the case of Lamoreaux, she should have created the necessary documents that make clear who is making informed, good-faith decisions on her behalf. This could have prevented much of the legal battle that has resulted in much of her estate going to pay for years’ worth of fees.
The implications of probate
The longer the probate process takes, the more fees can be associated with it. However, that does not mean that an estate with no fighting or issues surrounding it will take a short period of time.
The probate process is designed to ensure that any outstanding debts made against the estate are paid and that fraud does not occur. The seven to nine months that probate can average in length is so that all of those with direct claims to the estate or those who the estate owes can make their claims, preventing fraud and theft.
By accessing the estate and initiating a probate process while Lamoreaux was alive, her loved ones are unable to receive the same type of gift that they may have received had the estate remained intact.
Once you initiate the probate process in those circumstances, you run the direct risk of hurting the estate while the owner of the estate is alive to watch it all unfold.
The situation surrounding Lamoreaux’s estate should temper expectations regarding long-term planning and how the probate process functions. You need to have a plan in place that is communicated to your loved ones. By putting everyone on the same page, those you have put in charge of your decisions will not argue with other family members and risk putting the estate in jeopardy.
You need to trust the plan that you put in place, and trust your elder law attorney’s ability to create a plan of your choosing that fits all of your needs.