First, you should go through any papers and if you do not find the Will, be on the look out for a letter or  business card from an attorney.  If you find the attorney, you will be able to contact that person and ask if they have the original or a copy of the Will, or if they ever drafted one with that attorney.  A financial planner or accountant may also know the attorney that the decedent used.

You can also check with the decedents bank(s).  The person may have put the Will in a safe deposit box and a banker could assist you with obtaining access to the box.  If you still can not find the Will but remember your parent mentioning an attorney in a certain town, you could use the telephone book to contact attorneys in that town to see if they drafted a Will for that parent.

If by this time the Will has still not turned up, you should check with the local Probate Court.  A Will can be filed in advance of death and docketed with the Probate Court by the decedent themselves.

If you still can’t find the Will, the next step is to contact an attorney to determine how the decedents estate will be settled without a Will.

One exception is property held in joint tenancy.  A jointly owned asset will transfer to the surviving spouse or whomever the property was jointly owned with.  Also, assets with named beneficiaries such as insurance policies, IRAs and annuities will also avoid probate as long as the beneficiary is alive.  Furthermore, you can keep your assets from going through probate by transferring your assets into a trust.  This will help eliminate the need for your assets to go through probate.

After you prove that trust mismanagement has occurred, you will next need to show how you were harmed by this trust mismanagement.  This will often require financial experts who can reasonably predict what would have occurred to the trust assets if they had been properly managed by the trustee.  The court will generally award you damages for the amount the trust would have made but for the mismanagement by the trustee.  In some cases, criminal charges may also be brought against the trustee.

Another way to avoid a Will contest is to communicate with your heirs about the estate and probate proceedings.  This can prevent jealousy and suspicions which can result in a Will contest.

In recent years and even in my own practice, setting up ways to avoid probate has been some of my client’s main goals. This is because probate can be an expensive and time consuming process for the potential heirs. Attorney’s fees along with possible challenges to the deceased will can lead to delays and strife among family members. As such, when possible, probate should be avoided.

Probate is a good vehicle, as the article states, for oversight when you’re in a particular situation that would benefit from oversight. The article gives some examples and is well worth a read to practitioners of trust and estates.

Plotting Against Probate