What is Probate, and Why Would My Property Go Through Probate if I Have a Trust?

Becky Cholewka: One of the hardest things to deal with is to deal with the loss of a loved one. When we’re working with clients who have had a recent loss, it’s very emotional time, but it’s a time where I see a lot of people make mistakes.

Mistake number one I see is that ‑‑ not realizing that they should ‑‑ they decide not to go seek the advice of an attorney who handles probate matters. Probate is when we have to go through a court or a legal process to help distribute items when somebody dies. Without knowing what all the probate rules are, a lot of times people make mistakes and do things themselves that actually complicate matters on the back end.

It is worth your time ‑‑ within a month or two after somebody dies ‑‑ to make sure you go in and see someone, and make sure that you are following everything correctly as to the assets that that person who has died has left behind for others. This includes when people have trust.

The second mistake I see is people thinking, “Oh well, we don’t ever have to through court with a trust. So I don’t need to go seek counsel when someone dies.” However, when there is a trust, there are still things that we have to do to make sure that the trust works properly. Some of those could be that we have retitled some accounts into a different name of a trust, or you might have to retitle a piece of property.

We might have to record a death certificate with the county that that person owned real property in. There are different things that we still may have to do from a legal perspective, that’s easier to do now when somebody has recently passed, rather than waiting maybe three, four or five years now, when maybe the second spouse has now died, and now we have actually a more difficult time dealing with all of these issues.

When someone does die, of course, we want you to make sure that you’re taking care of your family, you’re taking care of all the burial needs, but also make sure that you’re also seeking advice and counsel of a probate attorney to make sure you’re dealing with all of the assets correctly as well.

In the end, it will save your family a lot of time and money to make sure that you’re doing things correctly on the front end than making mistakes and having to fix them on the back end.