From Ken Ditkowsky–“Probate courts have been cesspools”

To: Parris Boyd <>
Subject: Re: Cynthia Stephens suggested I send you my latest blog post
Date: Apr 30, 2016 1:30 PM
For years the probate courts have been cesspools.    I was not aware of there being a statute of limitations on the probate of a testamentary document or even the need for one.   I was aware that attempts to steal the proceeds of estates has been a national disgrace for a long time.    
When I first became a lawyer, I heard a more seasoned lawyer tell his client  “if dad dies, before you call the undertaker, get into the safety deposit box and empty it.”
When I asked the question “why?”  I was told that the undertaker put a death notice in the newspaper and the bank sealed the box – it could be reopened only after a representative of the State of Illinois visited the box.   In the inspect of the box and inventory by the state in order for the inheritance tax to be assessed, value items usually disappeared.   Of course the inspector denied that these items were ever in the box – as the State employee and maybe an assistant were the only ones allowed to examine the box it was their word against yours.  You certainly could not search their brief cases.
I then made further inquiry and found that the seasoned lawyer was not the only one who gave that advice or experienced that problem.    In fact the advice was quite common and even today most of the people I deal with or dealt with try to avoid keeping fungible items in the box.  
As to testamentary documents such as wills the way around a statute of limitations problem with probating a will is to file the will.   Illinois as an example has a requirement that the will be filed within 30 days of death.    It can be filed later, but, heirs need to be protected and filing the will does exactly that.   
The longer the will is out of probate the harder it is to prove up.    In most states a will is a written document for the decedent that is witnessed by two or more disinterested people who are ready willing and able to testify truthfully that the testator was of sound and disposing mind when he/she executed the document AND THAT the testator executed the document of his/her own volition.    Witnesses die – if all are dead a prove -up problem exists – or in the case where undue influence exists protecting the rightful heirs is a problem.   Thus, it does not seem to great a hardship to do a timely probate, assuming that one is necessary.   No probate is necessary if everyone agrees to the terms of the will and all the legitimate expenses of the decedent are paid.
The Statute of Limitations on probate does not necessarily mean that if the heirs sleep on their rights for more than 10 years that they lose their inheritance.    Many States have a marketable title act for real estate.   A verified claim filed at any time relevant protects the interest in real estate.   If we are talking about real estate, 7 years and paying the taxes or entry upon claim of right creates an ADVERSE POSSESSION.   As to person property – possession is 9/10s of the law, and after ten years few items have much in the way of value.
I hope that this places the issue into perspective for you.
What is relevant to me is the fact that the probate courts are viewed with such suspicion and fear of fraud.    The elder cleansing (guardianship) scandal is so rampant and so venal that people are afraid of the Court, its corruption, and the miscreants who inhabit the same.    In a democracy such is intolerable as the Court system is the escape value of society!   We need it to address our legitimate disputes!

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