Probate

Emotional Aspect of Probate

There is no way to quantify the emotional stress of going through the probate process. On many occasions the probate process will be efficiently handled by competent attorneys who keep their clients updated and advised on every aspect of the probate proceeding. On other occasions, the administrator or beneficiaries under the estate have no idea exactly what is going on or why the probate process takes so long. The fact is that the heirs are not necessarily in control of what occurs. Even though the personal representative of the estate has complete control, it doesn't always seem that way once lawyers and the probate process get underway. Before any action can be taken there must be probate court approval. This means having the proper documents drawn up by the attorney, obtaining the appropriate hearing time and then waiting for the probate judge to approve the requested action. This process may take one or two months. The beneficiaries of an estate can suffer emotionally during this period of time because they feel a loss of control. Unfortunately, there is nothing that can be done to make that process any less stressful.

If a Living Trust is used, the successor Trustee is the person in charge of the estate and has the final authority to make decisions. If the estate is complicated the successor Trustee may hire an attorney to help administer or settle the Trust estate. However, there are relatively few occasions where approval from a probate judge is needed before action can be taken by the successor Trustee. The emotional issue really boils down to the fact that in a probate setting, the heirs and the personal representative are not in control of their own destiny. Even if an estate could not be resolved any quicker in a Trust setting, the heirs and beneficiaries feel more comfortable and under less emotional stress because they are in control and they know exactly what is going on, rather then being held hostage by the probate process.

Burger's Will Leaves Legal Tangle for Heirs

As seen in the Fort Walton Beach Daily News, November 1995

WASHINGTON (AP) - Warren Burger, once the nation's highest-ranking judge, prepared a "woefully inadequate" will before he died, and it could cost his heirs plenty. The legal tangle is a cautionary tale for those Americans who have avoided proper estate planning.

"This really is a sad example," said lawyer George W. Dodge in Arlington, VA. Burger's estate of $1.8 million may face federal and state taxes of over $450,000. He possibly could have avoided all that."

Burger, who served as the nation's chief justice longer than anyone this century, retired in 1986. He died last June at age 87.

Just after his wife died in 1994, Burger used a computer to type a one-page will leaving one-third of his estate to his daughter, Margaret, and two-thirds to his son, Wade.

It appears the ex-chief justice prepared the will hastily, not bothering to check his spelling.

The document named Wade Burger and J. Michael Luttig, a federal appellate judge and a former law clerk and special assistant to Burger, as executors but misspelled the designation once as "exeuctors."

More importantly, the document did not grant the executors any power to sell Burger's real estate. "That omission means they need a probate court's permission to dispose of the property. We're talking about unnecessary attorney fees and court costs," Dodge told The Associated Press.

In an article published in the Arlington County Bar Association Journal, Dodge called the will woefully inadequate.

The will and probate record of the former chief justice, a man who zealously guarded his privacy, is open for public scrutiny at the Arlington County Courthouse, in Deed Book 196, page 96.

A lawyer familiar with Virginia probate law could have told Burger how to keep the whole thing out of the public record.