There are a lot of factors to consider in whether or not it is worth it to file a probate case. A cost analysis should be part of the decision.
Who Can File Probate?
In order to file a legal case, you have to have “standing”. Simply put, legal standing means that you have a right to file the case, and it affects you in some way. For example, here is a general list:
- You are a spouse or child of the deceased person, or beneficiary in the will (or an heir at law for someone without a will). Or you are the guardian of a person who fits one of these categories description and will file on their behalf.
- You are named as the executor in the will.
- You are a creditor of the estate or have a legal interest in some of the property held in the estate.
But, if a nosy neighbor of the deceased, who has no relation or interest in the estate wants to file probate, they lack standing. They also have nothing to gain from filing, other than legal bills that they could be stuck with!
Some Examples: Is it Worth it?
- In order for it to be “worth it” to go through probate court, there should be a cost analysis done. For instance: Your sister dies and you are the only heir. Say that you have received a quote of $5,000 in attorney’s fees and another $ 750 in costs to sort out her estate. That is a total of $ 5,750.00. You are going to pay up front, but want to be reimbursed. Now, assume she had no real property and only owns a 15 year old auto and a small bank account with a value of $3,000.00. Assume there are no other assets of value, no life insurance or other accounts. Well, even if all goes well, at the end, you will be minus $2,750 and you will be the owner of a 15 year old auto. Is this worth it to you? You will need to decide.
- Take the above example again, and assume all is the same, except that there is a home, with no mortgage, and it is worth $325,000.00. Different story. You would probably choose to file for probate.
- Now, assume that everything in #1 is true. But, instead of a paid off home, there is a home with a mortgage. Now, add in massive debt. Assume back federal taxes, a lawsuit from local taxing authorities, credit card debt, medical debt, and more. That situation deserves a more thorough analysis. Can some of the debt be negotiated or written off? How likely is that to happen? Since the case is much more complicated, the legal fees, costs and time spent will rise accordingly. Is it worth it to file? Or will you be spending hours and hours for the benefit of creditors getting paid, with little or no value to yourself? Are you willing to take on this task?
- If, as in the examples, you are the sibling of the deceased person, you may choose not to file, based on a cost analysis. But, if you are the spouse of a deceased person, the result may be different. Your finances, and probably your homestead will be tied up with the financial picture of your spouse, and some of that debt may even be joint debt. It is recommended that you get a legal consultation about the whole picture, and learn about all the options that you may have, including, but not limited to, filing for probate.
- *Note* How complicated a case is depends on several factors. One of those factors is whether the person died with or without a will. In the examples above, for clarity, I did not make a distinction. But, be aware that it is always simpler and less expensive if the person had a clear, unambiguous, legally valid will!
How We Can Help
We have experience in dealing with probate cases of all types, from straightforward to very complicated. Our attorneys and staff can assist you in English or Spanish and help you make a decision.