In this episode of Absolute Trust Talk, Kirsten Howe and Associate Attorney Ariana Flynn shine a light on the often misunderstood world of probate. They discuss why estate planners typically seek to avoid probate, the situations that make it unavoidable, and the key role of the personal representative—whether executor or administrator—in guiding the process. By exploring how the court appoints someone to oversee an estate, they underscore the importance of having a well-crafted plan in place. If you’ve ever wondered about the nuts and bolts of probate or questioned whether your own estate plan is up to date, this episode offers valuable clarity and peace of mind.
Time-stamped Show Notes:
0:00 Introduction
0:20 To get things started, Kirsten and Ariana explain why probate can be so costly and time-consuming and reveal why it’s still sometimes necessary—especially when someone has passed away or become incapacitated.
1:44 Next, they address the common misconceptions surrounding probate and set the stage for this mini-series dedicated to probate basics.
2:20 Listen in as Kirsten and Ariana break down the role of a personal representative, clarifying how an executor differs from an administrator.
3:27 In this part of the show, they detail the formal process of becoming an executor or administrator, including the court petition requirements.
6:05 Finally, they explore the concept of a “special administrator,” explaining why this interim role might be needed in urgent circumstances.
Transcript:
Hello and welcome to Absolute Trust Talk. I am Kirsten Howe, the managing attorney at Absolute Trust Council. One of our associate attorneys, Ariana Flynn, is joining me. Hi, Ariana. Nice to see you.
Good morning. It’s great to see you too.
As estate planners, we spend a lot of time and energy helping our clients do many things. One of the things many are focused on is avoiding probate. We’re always trying to avoid probate, as it is expensive and takes a long time.
Sometimes, we can’t avoid it because it’s too late. Either our person has already died—we can’t do planning after we die—or our person has become incapacitated and they are no longer capable of doing planning. Sometimes, we have to do a probate, and there’s no real way around it.
They came to my attention in a couple of cases in the last two weeks that maybe we’re doing too good a job of putting that fear of probate into the ether. I had a couple of clients who were concerned about an elderly family member who didn’t have an estate plan, and they just were panicked at the thought of having to do a probate because they couldn’t do any planning. Once I walked them through what it’s like and what to expect, they were relieved, and they thanked me because they felt like they got some value out of that meeting.
We should do a little more education around the nuts and bolts of probate. There’s a lot of “Oh, probate is terrible,” but sometimes we have to do it. We will have this short, several-episode series on the basics of probate. Today, you are the lucky audience who will listen to the first episode.
We will discuss what an executor is, although the correct phrase is “personal representative.” Ariana, why don’t you start with what a personal representative is and how it relates to an executor?
Yeah, absolutely. The personal representative is the person who handles the probate and takes the estate through probate. You can be one of two personal representatives: you can be the executor, or you can be an administrator. If somebody dies with a will, you’re appointed executor. If they die without a will, you’re the administrator. Same role, same duties—just different titles.
It’s the same probate process, but your title depends on whether there’s a will. Now, if we’re talking about how the court chooses an executor or administrator, remember that this is a person appointed by the court to do the probate. How does that happen?
The court doesn’t seek you out or anything. The person must petition the court to be appointed executor or administrator. You must submit filings and pleadings to the court to ask them to be appointed in that role.
When there’s a will, that person is called the executor, and it’s typically the person named in the will. The decedent will say, “This is who I want to be my executor.” The court will appoint that person unless there’s some controversy—for example, someone else comes forward and objects. But if there’s a will, that’s usually who will be appointed, barring some unusual circumstance.
So, how does it work when there’s not a will? It’s the flip side. When there’s no will, there’s nobody specifically named, so the court uses codified law that creates a list of people with priority—spouse is number one, then children, grandchildren, and so on. It goes down a line of potential people who can petition to be appointed administrators. If both a spouse and a child petition, for instance, the court looks at who has priority under the probate code and considers other circumstances to decide who should be administrator.
Most of our probate cases don’t involve a dispute about who will serve, but it could happen. When competing petitions exist, the judge has to decide who is the right person for the job. More often, the biggest issue is gathering all the documents and complying with every requirement, which can be tedious but less about actual conflicts.
There’s one more job title that sometimes comes up, which is “special administrator.” This is relevant when we can’t wait three months for a court hearing to appoint an executor or administrator. For example, if a house is vacant and facing foreclosure or the previously appointed administrator has passed away, someone can ask the court to appoint a special administrator temporarily. However, even with a special administrator in place for urgent matters, you still have to file the complete probate petition to get the permanent appointment.
That’s our first episode on probate’s basics. We hope it was informative. Ariana, thank you so much—you were very helpful, as always. We hope you learned something.
We look forward to connecting with you next time.
Resources Related to This Episode:
- Episode 073: The Truth About Probate: Real-Life Scenarios You Need to Know https://absolutetrustcounsel.com/073-the-truth-about-probate-real-life-scenarios-you-need-to-know/
- Episode 055: Ask the Expert: When Do You Really Need a Will or Trust? https://absolutetrustcounsel.com/055-ask-the-expert-when-do-you-really-need-a-will-or-trust/
- Episode 047: Estate Planning 101: The Basics You Need to Have in Place https://absolutetrustcounsel.com/047-estate-planning-101-the-basics-you-need-to-have-in-place/
- Episode 037: What Is Probate and How Can It Be Avoided? https://absolutetrustcounsel.com/037-what-is-probate-and-how-can-it-be-avoided/
- A Will is Not Enough – Securing Your Legacy with Estate Planning Life can change in an instant. A will is not enough to be prepared. Get free access to our actionable E-book Guidebook #1 and start protecting your legacy today. https://absolutetrustcounsel.com/guidebooks/
- Learn how to comfortably define gray areas and assess your own unique needs to build a secure future now effortlessly. Check out Guidebook #2, Estate Planning Beyond the Basics, here > https://absolutetrustcounsel.com/guidebooks/
- Get our free introductory guide to the most used estate planning tool, family trusts, and understand how we plan to help protect your family. Guidebook #3: https://absolutetrustcounsel.com/guidebooks/
- Absolute Trust Counsel would love to offer access to our Incapacity Planning resource page: https://AbsoluteTrustCounsel.com/Incapacity-Planning/. We’ve collected our top planning information all in one place so listeners can find videos, guidebooks, blog posts, and a host of information with tips and strategies on implementing, planning, and protecting themselves and their loved ones.
- We’re pleased to provide a library of e-books to address common estate planning questions and concerns in practical, easy-to-understand language. https://AbsoluteTrustCounsel.com/Resources/.
- ASK KIRSTEN: If you’d like Kirsten to answer your question on the air, please email her at Info@AbsoluteTrustCounsel.com.
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