THE POWER OF PROBATE
Ask most anyone who’s thought about the subject and they’ll tell you – probate is a bad thing. People try to avoid probate, at great cost. Invariably, their quest to avoid probate will take them to the promised land of documents called “living trusts.” People will spend thousands of dollars on a living trust.
Yet, a very large percentage of the people who purchase these documents in order to avoid probate will not avoid probate (but that was the subject of a previous column of mine). For those people who research and purchase a living trust, probate is synonymous with government interference and taxes.
In a way, I don’t believe that a person who purchases a living trust has wasted their time and money because they bought something other than probate-avoidance. They purchased piece of mind, and piece of mind is the best thing an estate plan can do for someone. A living trust isn’t a bad thing. It just might not be the best thing for you, and here’s one reason why.
As I tell people, probate is the simple act of proving the validity of a Will. In over 90% of the probate cases, the executor simply brings the Will to the surrogate’s office, along with a death certificate, fills out a simple questionnaire, and pays a nominal fee. The entire process takes less than thirty minutes (assuming there’s no one ahead of you in line).
Furthermore, an estate that must be submitted to probate actually has advantages over an estate that does not involve the probate process. That is – dare I say it to all of those people who are in love with their living trusts and their perceived triumph over the probate process – the fact that the probate process is a process established by law and administered by the government can actually benefit an estate.
A case that the New Jersey Supreme Court decided on May 27th illustrates the power of probate. The title of the case is Fazilat versus Feldstein and the estate of Feldstein.
The synopsized facts of the case are as follows: In 1996, Mr. Feldstein had a child with his girlfriend, Ms. Fazilat. Ms. Fazilat was not the only woman in Mr. F.’s life. Mr. F. also had a wife at the time he had a girlfriend. Moreover, Mr. and Mrs. F. had children together.
Mr. F. promised Ms. Fazilat that he would treat the child he had with her similarly to his other children. Mr. F. died.
Mr. F.’s Will did treat all of his children the same – it left nothing to any of them. Mrs. F. inherited the entire estate.
Years after Mr. F.’s estate was settled, Ms. Fazilat initiates a paternity action and seeks child support from Mr. F.’s estate in the paternity action.
The case involved the interplay of New Jersey’s Parentage Act and the Probate Code. New Jersey’s Probate Code indicates that all claims against an estate must be presented to the executor within six months of the decedent’s death, or until the assets of the estate are finally distributed to the beneficiaries of the estate.
In this case, all of the assets were distributed to Mrs. F. years prior.
On the other hand, New Jersey’s Parentage Act clearly established an obligation on behalf of Mr. F., and his estate after his death, to support his illegitimate child. Undoubtedly, if the child were Mr. F.’s (there appears to have been some question about parentage, but parentage was assumed for purposes of this case), then his estate owed the child an obligation of support. In fact, in New Jersey, the obligation to support one’s children is quite well-founded in the law.
The opinion was authored by Justice Virginia Long, who writes most, if not all, of the Court’s opinions touching on family law-type issues.
Here, the Court held that the six month statute of limitations on claims against an estate, which the Probate Code established, trumped the Parentage Act. In other words, the Probate Code barred Ms. Fazilat’s claim for child support on behalf of her minor child.
That, my friends, shows the power of probate. In this case, probate barred an action for child support of a minor, dependent child. If probate can bar that claim, imagine what it could do to your credit card bills.