Ask any ten people on the street to explain probate court to you and, as less than half of US adults have any sort of estate plan, five will likely have no idea, and the rest will tell you it’s where your family goes to suffer after you die. Neither of these answers is very helpful—and not because probate court isn’t a place you go to suffer but because death is not the only circumstance that leads a family there.

Beyond validating wills and adjudicating the distribution of assets, probate court handles everyday issues such as firearms and marriage licenses and hears cases concerning conservatorships and guardianships. These latter actions are the subject of this article and the source of the dangerous secret those that don’t fully understand probate risk stumbling upon. The fact is, your family can end up in probate even if you’ve done everything right and placed your assets in a living trust for the precise purpose of avoiding probate. Once there, things can get nasty and it’s a real tragedy when they do.

Probate hears cases concerning guardianships and conservatorships when a person loses the ability to safely manage their own medical and financial affairs and requires an outside party (usually a loved one) to do so. Often, disagreements erupt around such decisions because nobody wants to suffer the indignity of being deemed unfit to manage life on their own.

Consider the following story that came through our office not too long ago:

Mark Brown and his brother Ken both received a phone call from their father’s neighbor. The neighbor wanted to know if the brothers have spoken to their dad recently and when he learned that they hadn’t he suggested they give him a call.

Had you talked to their father, retired U.S. Army Colonel Brown, at the time you would’ve listened to him tell story after story and sworn he was sharp a tack. As it turns out, he was so sharp that he’d recently won the Publishers Clearing House sweepstakes and had, himself, received a phone call the week prior informing him of this. The caller who delivered the good news had told him all he needed to do to claim his prize was cover the processing fees which, naturally, needed to be paid in cash. As per instructions, Colonel Brown went to the bank, withdrew $15,000, stuffed it in an envelope, and dropped it in the U.S. Mail.

Of course, the sweepstakes never arrived.

When Mark and Ken reached out to their father they quickly realized he had lost his ability to recognize a brazen, thinly veiled scam and they worried about his financial judgment.

It wasn’t an inheritance they were after; rather, they simply wanted to protect their dad from squandering everything he’d set aside for his own care. Colonel Brown, after all, had always taken great pride in being able to pay his own way and it would be crushing if he were no longer able to do so.

Luckily, the Colonel had done a little bit of planning. Not only had he set up a living trust, relieving his loved ones of having to face probate court upon his passing, he had also considered disability planning when organizing his estate. His logic: should he become unable to manage his own affairs, he preferred that his family, rather than an unknown judge, decide when he required assistance. His estate plan included a provision that stated that should he lose sound decision making ability, his successor agents (his sons) would take over.

That’s exactly what happened, and the Browns didn’t need to navigate a court battle, didn’t need to face the indignity of proving their case in front of a judge, didn’t need to hire lawyers, and, most importantly, didn’t end up fighting among themselves.

Why? Because Colonel Brown had planned ahead.

Including a disability clause in your estate plan is an essential, often overlooked step. After all, avoiding probate is a central reason folks set up an estate plan, and yet all too often, despite doing (almost) everything right, a case like Colonel Brown’s materializes and the family ends up in probate anyway.

Preparing for the possibility of incapacitation is just as important as preparing for your eventual passing and a good estate planning attorney can tell you exactly how to do so.

Give us a call and let’s chat about your and your family’s priorities. We’ll walk you through the steps of setting up a disability clause so that should the time come that you need extra help, the decision doesn’t get shifted to a judge that you don’t know and that doesn’t know you.

You can watch the video blog on this topic below!

Contact Attorney James M. Miskell

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