I love saving money as much as anyone else. That is why I love do-it-yourself (DIY) projects. A couple of weeks ago, I needed a new garage door opener. I wanted to save money, so I bought the unit and installed it myself. It also took me 6 hours, a lot of frustration and isn’t the same quality of work I would have gotten from a professional. Sometimes, it is better to call someone who knows what they are doing. This was one of those situations.
If you are thinking of taking on a probate as a DIY project, first ask yourself:
Am I willing to dedicate the time necessary to understand the duties and responsibilities spelled out in over 130 probate statutes?
Do I want to try and recreate the court pleadings and legal notices I’m required to file?
Am I willing to assume personal liability to all of my deceased parent’s heirs and creditors if I don’t perform all of my duties as the personal representative?
If you answered no to any of these questions, you should hire an experienced estate planning attorney to do the dirty work. Although you may have to come up with some money up front, you will be repaid for any legal fees you pay for probate work before anyone else gets paid.
Here are three of the most common pitfalls individuals run into when attempting a DIY probate.
• Failure to give notice to heirs
In probate, the personal representative is required to give notice to all heirs and other interested parties. What that really means is that even if certain individuals are excluded from inherited under a valid will, they must still receive notice and the opportunity to contest the will. Often what I see is that the deceased parent does not want one of his children to have anything to do with his will because they have already received their inheritance and will look for any opportunity to make life difficult for the other family members. However, you don’t have to be named in a will to be an heir. In Arizona, an heir is defined as anyone who would receive an inheritance had no will been made. Accordingly, it is often argued that the notice must be sent to everyone, even if they are specifically disinherited in the will.
• Failure to give notice to creditors
When we die, a notice to creditors is required to give any potential creditor of the deceased person an opportunity to come forward and demand payment. If a personal representative doesn’t properly give notice to creditors before all the money and other property is distributed, he may be personally responsible for paying the debts owed.
• Failure to get a bond
When a person files a probate action with the court and applies to be the personal representative of the estate, a bond is required by law if not waived by a will. A bond ensures that if the personal representative messes up along the way by not giving proper notice (or any of the hundreds of other probate requirements), then the bond is used as an insurance policy to make things right. Getting a bond may be expensive and is based on the personal representative’s credit. Bad credit can make the bond very expensive or even unattainable. If a bond is required and you cannot qualify to get one, you cannot serve as the personal representative.
As you can see from just a few of the common pitfalls of probate, this is not a good DIY project. You would be better served spending a little extra money hiring a professional that is experienced in that area of practice.
Adam Hansen is an attorney with Deason Garner Law Firm. He will present a free educational seminar that will discuss the pitfalls of probate at 9:30 a.m. or 6:30 p.m. Thursday. To RSVP or schedule a free consultation, call 783-4575.