The short answer is probably not.  I know people get really concerned about doing everything the right way, and I fully understand how people want to do things the right way, especially when it comes to legal matters, but jail usually isn’t the punishment if you happen to make some missteps in handling your Mom or Dad’s estate plan.

There are a couple of ways you might end up in jail, but only if you move beyond making a mistake, and move more into nefarious or malevolent actions.  Most people are not nefarious or malevolent in what they are doing for a parent’s estate plan.  You may be inexperienced or naive, but that does not make you a bad actor.  Most people are doing the best when carrying out an estate plan.  If you are doing your best, then you will be OK.  Someone going to jail because of what they did in carrying out an estate plan is just not a common occurrence, and it is something you can certainly avoid.

 

When WOULD I Go To Jail?

There are a couple of things you could do to land in jail.  You could take money out of the estate and use it for your own purposes, or you could withhold money from the named beneficiaries, or heirs, and keep that money for yourself.  This is known legally as larceny or embezzlement, and we commonly call it “stealing.”  I think we all know what stealing is and why it is wrong.  If you are in charge of an estate plan and you steal money from the beneficiaries or heirs, you could be charged with a crime and be punished for stealing money out of the estate.

Not too many people steal money out of an estate, so this is probably not a huge problem for most of you who are reading this.  And, since the courts supervise the administration of an estate through the probate process, the courts will likely want to know what happened to money that was supposed to go to the named beneficiaries or heirs, and hopefully the courts can stop any such nonsense before it rises to the level of stealing.

Of course, if your parents had a trust, then the court is probably not actively supervising the administration of the trust.  That means a trustee could steal money out of the trust, but hopefully you have picked someone trustworthy to be your trustee.  You don’t want to pick someone who is likely to take money away from the beneficiaries, or likely to overcharge for their work.  Instead, you carefully pick someone who will carry out your instructions and stealing will not be an issue from a trust or your parents’ estate.

 

Most People Are Just Doing the Best They Can

Most people who are carrying out their parents’ estate plan and just doing the best they can, but sometimes they make mistakes.  The Colorado Judiciary publishes the necessary forms to handle probate online, and even has a document called “Instructions for Probate With a Will,” and “Instructions for Probate Without A Will.”  These are good forms to find and to follow as you carry out your parents’ estate plan.   Probate in Colorado is driven by the forms, and since you can find the forms online, and follow the procedures shown in the forms, you will likely be OK in handling your parents’ estate.

Of course, if your parents’ estate has complicating factors, like outstanding creditors, or Medicaid claims against the estate, or amounts due that exceed the value of assets in the estate, you may want to consider hiring a probate attorney to handle your parents’ estate.  You still probably won’t go to jail if you make mistakes in a more complicated estate, but you also want to have more complicated situations handled by someone more experienced in the whole process.

 

What Can I Do to Avoid Jail?

First, realize you are probably not going to jail.  You aren’t stealing from anyone, you aren’t trying to get out of paying Medicaid or another creditor, and you aren’t taking what is not yours.  That means you are not going to jail, but that doesn’t mean everyone is always happy with what you might do.  More than anything else, I see people getting upset at a person carrying out an estate if they are not receiving regular updates and communication from the person carrying out the instructions of a will in probate.

Probate takes time, usually about 12 – 18 months from start to finish.  Most people don’t know that it takes time, so they get antsy or anxious about what is taking so long.  As the person tasked with carrying out your parents’ estate, you can communicate with the beneficiaries or heirs and avoid most of the problems and misunderstandings I see in carrying out an estate.

You can tell the beneficiaries and heirs that you have filed the will with the court and that you have opened a probate case.

You can let them know that you are waiting on the court, or waiting out the time period necessary to give notice to unknown creditors, or that you are waiting on a bank or someone else.

If you communicate with the other parties involved and let them know why there might be delays, you can keep the other people involved from getting too anxious and from ascribing nefarious or malevolent motives to your actions.  Your excellent communication is the best tool you have to keep everyone satisfied, and keep yourself out of jail!

 

Just Follow the Steps on the Instructions and You Will  Be Fine

Most estate proceedings are not like in a bad movie where there is a drama filled courtroom scene and startling revelations about the secret life of a deceased person.  And most estate proceedings don’t make national news like a botched conservatorship for a celebrity.  Most estate proceedings are a bit more mundane and boring.

Boring is good and mundane is the way you want things to be.  If you communicate with everyone involved, and follow the instructions the courts have published for you, you won’t go to jail.  I don’t handle probate or trust administration in my practice, so I am not the right one to help you go through the process of getting assets distributed out after you die, but I can help set up a clear pattern for how things should be distributed.  That can help your named representative to not go to jail, too.  If you want to set up the clear instructions in your estate plan, click the button below.  We can work together to keep everyone out of jail!