Definition | Administration | Cost | Delay | Public | Emotional
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
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.