Probate in Honolulu with Scott Makuakane, Est8 Planning Counsel LLLC
Aloha. I’m attorney Scott Makuakane with the law firm of Est8Planning Counsel in Honolulu. You’re watching The Eldercare Channel.
Do you remember those old T.V. commercials where somebody who plays a doctor on TV steps out in front of the camera and says something like, “I’d like to talk to you about diarrhea?” Well, I’m going to do the legal equivalent of that. I’d like to talk with you for a minute about probate.
Now, probate isn’t necessarily the end of the world. It’s not always a bad thing, but it can be. Let me explain how probate works.
Let’s say I die and I’m passing my estate by way of my will. Well, the first thing that has to happen is the person named in my will as my personal representative (that’s the same thing as “executor,” except in Hawaii, we call it “personal representative”) has to take my will down to the court and say, “Judge I think this is Scott’s last will and testament and I would like you to appoint me as his personal representative with the authority to pay his bills, administer his estate, and eventually distribute his assets in accordance with the terms of the will.”
Now, in order for that proceeding to start, notice has to go out to all of the people named in my will plus all of the people who would’ve gotten my stuff if I died without a will. So you can imagine how that probate petition going out can be an invitation to a fight. I mean if people want to argue about who should be my personal representative, who should get my stuff, whether I was crazy when I signed the will in the first place, probate provides a boxing ring for them to get together and beef it out.
So, if fights among your family members are the kinds of things that you like to discourage, probate isn’t a really good way to go for you and for your family.
But, there’s a lot worse things about probate. Now, probate essentially takes the control over the management of your estate away from your family members, the trusted people that you would want to have in control of it, and puts it in the hands of a judge and lawyers who may not have the same kind of sensitivities towards your family and their needs as you would have or your chosen decision makers would have. So, that loss of control can be a huge, huge disadvantage.
Now, if lawyers are involved and courts are involved, is probate an inexpensive process? Well, it may not be that bad from a lawyer’s standpoint, but there are expenses involved in probate that can be avoided by using things like revocable living trusts and other means that estate planners use in order to sidestep probate.
So if a will does go into probate, how quick does probate get completed? Well, a very quick and easy probate may take nine months. So, probate can be a time consuming affair, and it doesn’t take much to complicate it to the point that it’s going to take a lot longer than nine months.
- So, we’ve got the loss of control.
- We’ve got the “invitation to a fight” problem.
- We’ve got the expense.
- We’ve got the time.
- We’ve got all of the aggravation that’s built into all of that.
Probate can be a very unpleasant thing for your family!
But, here’s what I think is the worst part of probate. This, ladies and gentlemen, is the will of, yeah, you got it, Michael Jackson. Now, I had a copy of Michael Jackson’s will within 12 hours after it was admitted to probate in the state of California. Why is that? Is that because I’m important? Is that because I know somebody important?
No, it’s because I have a computer and I have access to the Internet. Somebody went down to the courthouse right after Michael Jackson’s will was admitted to probate, made a copy of it, posted it on the Internet.
Now, I’m not afraid of my will being posted on the Internet. I don’t think anybody’s going to be interested in it to the same extent that they would Michael Jackson’s. But, what I am worried about is somebody going down to the courthouse, getting their hands on my probate file, going through it, finding out things about my assets, finding out things about my family that I’d really rather were kept private. So, to me one of the worst things about probate is that loss of privacy.
For all of those reasons probate can be a wonderful thing to avoid.