Business Innovators Radio - Interview with Jennifer Surmacz, Founder of Posterity Legal Discussing The Horrors of Probate

Episode Date: August 9, 2024

Jennifer Surmacz is passionate about helping clients understand the legal intricacies of estate planning. She translates complex legal concepts into easy-to-understand options for each client based on their unique circumstances.Jennifer was born into a military family and lived in several states before settling in Oklahoma. She graduated from Mustang High School as Valedictorian and a National Merit Scholar. Jennifer earned a Bachelor of Arts in Political Science and a Minor of Arts in Sociology from the University of Oklahoma. She earned her Juris Doctor at Oklahoma City University School of Law.Jennifer is licensed to practice law in Missouri, Oklahoma, Nevada, and the Federal District of Maryland. She has experience in Estate Planning, Probate, Contracts, Family law, Federal Civil litigation, and ERISA Federal Class Action litigation. Jennifer also served as a Special Public Defender for Juveniles in Canadian County, Oklahoma, and St. Louis and St. Charles counties in Missouri.Jennifer served terms as 10th Circuit Lieutenant Governor of the American Bar Association LSD, and Vice President of Women’s Law Student Association. She is a member of the American Bar Association, the Phi Alpha Delta legal fraternity, the Oklahoma Association of Justice, the National Association of Professional Women, Lawyers Fighting Hunger, and Gene Slay’s Boys and Girls Club. Jennifer is also a black belt and national champion in Tae Kwon Do.Learn More: https://www.posteritylegal.com/THE CHOICE OF A LAWYER IS AN IMPORTANT DECISION AND SHOULD NOT BE BASED SOLELY UPON ADVERTISEMENTS.Influential Entrepreneurs with Mike Saundershttps://businessinnovatorsradio.com/influential-entrepreneurs-with-mike-saunders/Source: https://businessinnovatorsradio.com/interview-with-jennifer-surmacz-founder-of-posterity-legal-discussing-the-horrors-of-probate

Welcome to influential entrepreneurs, bringing you interviews with elite business leaders and experts, sharing tips and strategies for elevating your business to the next level. Here's your host, Mike Saunders. Hello and welcome to this episode of influential entrepreneurs. This is Mike Saunders, the authority positioning coach. Today we have with us, Jennifer Surbeck, who's the founder of posterity legal, and we'll be talking about the horrors of probate. Jennifer, welcome to the program. Thank you for having me. You're welcome, and I, of course, want to learn all about anything that is about horrors and how to avoid.

But before we get jumping into that, tell us a little bit about your story and your background and how did you get into the legal profession. Yeah, okay. So, yeah, my name is Jennifer Sermak. I grew up as an Air Force brat, and I moved a kind of. kind of all across the country. We settled in Oklahoma because my parents got out of the military, got into the FAA, and that's where they kind of settled there. And so I went to the University of Oklahoma, Boomer, and then went to Oklahoma City University School of Law. It's a private school down there,

very good one. And then I started just general practice in Oklahoma, where I was doing a lot of litigation. I was doing divorces, probates, criminal defense, all of that kind of stuff. I decided being in the trenches like that wasn't the best fit for me. So I moved up to St. Louis. I started working for a big class action federal firm up here, doing a lot of ERISA litigation. So I was really into the stock market and keeping brokerage companies kind of in charge. check with how they behave. And through this journey of being the general practitioner in Oklahoma and then coming up to the federal firm in St. Louis, I realized that there was this need for the public, a need for private estate planning, because I just started seeing families go through

the probate system. And, you know, being an outsider, not really, being the lawyer that's helping a family through probate, it's a use. unique experience because you get to watch families, you know, they just experience a death in their family. So they're going through all of this turmoil emotionally because, you know, somebody very close to them died. But then you also throw in the legal system and all the hoops and everything that they have to bounce around. And then just to close out that loved one's estate. And then you get up to the federal circuit and you see how, you know, all these big, you know, brokerage houses mess up people's estates so that by the time they pass away, their families left

with an absolute mess. And so I saw this happening over and over and over again. And so that's when I decided to break free and go out on my own and start a private estate planning law firm. And that's what posterity legal is, is we focus solely on estate planning and positioning people so that they don't go through probate court. And they also, we teach financial wellness of what to look out for so that they don't get their 401k decimated, right, by these big broker houses. So that's really kind of like the origin of me. I also had an issue with my own family that kind of kicked me into doing estate planning. But it kind of was this whole thing of years worth of watching this kind of happen to people's families and their 401k's and thinking, you know what?

there's got to be a better way. Yeah. And that's when I broke out on my own, started Posterity Legal. And, you know, I think a lot of people have entrepreneurial tendencies. And if you had started after law school and gone, you know what, I'm going to hang my own single and started Posterity Legal, you would not have had the foundation and experience and this passion and drive from what you experienced. I think that is so powerful to go,

I was out there, yeah, paying my dues, working my 80, 100 hours a week kind of a thing, but I started noticing this and this going, there has got to be a better way. And, oh, this is so bad. I can't do anything about it. You know, my hands are tied because I'm just doing my job. But you're kind of making mental note and probably keeping some little notes on the side going, if I could ever start my own firm, I'm going to do this. So I love that whole setup.

And here is my first question. I think when you say, tell us about the horrors of probate. first of all, let's define what probate is. So we get our head wrapped around that. Yeah. And actually, I like that we're starting here because it is probably the most misunderstood area in the law. So when somebody passes away, there is a process. So like when, let's say you have titled property like a house or a car or you have signature property like a bank account or a 401k, you know, while you're alive, if you want to

to just sell your car, you would just sign the title to the person you're selling it. Right. Well, when you pass away, you're not there to sign that document. Right. So there has to be this process where we remove a deceased person's name off titled and signature property. That's the other thing. If you own titled and signature property, you have an estate. You may not realize it, but that's what that definition is, is titled in signature property that only your signature can buy seller transfer, okay? And so when somebody's gone and we need them to remove their name off that titled property and move it to a living person, there's this process that must happen. It's an administrative process. It's paper pushing, but that process is called settlement of a deceased estate.

and it can happen in two avenues, the public avenue or the private avenue. And when I say public, I mean government. That's what probate court is. Each state you live in, I don't care if it's California, Florida, New York, or Oklahoma, whatever, every state has a probate code. It's all public information. You can look it up right now. Those are the set of rules that the government is going to use to close out your estate

and remove your title, your name off those titled properties and move it to a living person. Okay. That's what probate court does. Because it's almost like you're not around to sign it. You're no longer with us. So who can stand in for you? It's like that third party, the court will or whoever that assigned person because we can't say your best friend because you didn't set that up ahead of time.

That's exactly right. And that's, you just hit the point right there. You didn't set it up ahead of time. Yeah. So the probate code, the probate court is the default code if you didn't set up your own private estate. Okay. And so when I say two avenues, that's the public avenue. The private avenue is a state, we call that estate planning.

That's where trusts live. Okay. And so the probate code and the probate court is basically like if you didn't make your own private estate, well, then, you know, your jurisdiction, whether it be Oklahoma or wherever. That is the jurisdiction that's going to take control and make the rules of who's getting what, when, where, and why if you didn't take the time to make a private estate. So that's what the probate code, what the probate court is, is a judicial process to close out a dead person's estate, but using the rules of the law as the default of that state. And that changes because I, aren't I correct in thinking, and maybe it's a little bit misguided, but some states don't have probate requirements or as stringent. because I'm in Colorado and I don't think we're a probate state, but what am I thinking of there? Now, all 50 states have a probate code and a probate court. All of them do. Some of them are more lenient than others.

Yes, all jurisdictions are going to change a little bit. But the reason why it's there is because these principles all stay the same. We have to remove your name off your titled and signature assets and pass it to a living person. And isn't part of the horror aspect, you know, where it could just take just forever amount of and red tape and paperwork and there's some unscrupulous, you know, attorney types that would take forever in a day because they're getting billed by the hour. So I think all of that kind of ties into my next question because we see now what probate is and why it's necessary to clear the deceased person's estate. But how long does it really take and what's the process? Yeah. So that's another thing is people don't really, jurisdictions do differ. But when you look at the

codes. The minimums after death, some states say four months, some state say six months. Now, the reason why those have minimums in there is because that's how long we have to advertise your death, like in a newspaper and say, you know, any creditors need to lay claim, all of that kind of stuff. That's the absolute minimum that it can take, but that's not reality because when I'm saying minimum, that's not including the human element of probate. Right. Remember, you have a family who just lost a loved one and now we're going to fight over who gets the diamond ring because grandma never said who got the diamond ring, right? So sometimes probate cases can take years.

And I like to use celebrities as an example. But I still use it. Martin Luther King, his probate estate is still open to this day. Wow. Okay? So we're talking 40 plus years later because they're still arguing. about who gets to use his likeness and this, that, and the other. Now, an average probate, I don't know, it depends on the jurisdiction and how many people

died in your state that year, okay? Wow. Because if you file for a probate, let's say in September, well, you're in line after everybody from January to August that passed away that year. Oh, and also the other previous year that those probate cases haven't been wrapped up yet. And then if you add in that we're fighting over diamond rings or money and all that, yes, it can drag out for years. Okay. And you're absolutely right.

There is a financial incentive for attorneys to keep this going because if I'm a probate attorney, the more I make more money, the more your family argues. The more times I have to go to court, the more money I make. So there is this financial incentive there of, all right, let's just kick the case down another month. Let's just do this. So let's do that. The attorneys, you know, that's the way they make their money. Yeah. And maybe a little of that is necessary.

And then some of it's a gray area, but then I'm sure some of it is egregious and you would go, that's just craziness. So because of that, that's an actual cost to probate. What are some of the other costs that are associated? Yeah. And by the way, jurisdictions are kind of split on attorney's fees, which by the way, you know, who writes probate codes and statutes? attorneys.

Attorneys. Who do you think gets paid first in those codes? Yeah, yeah. Right? The attorney is always going to get paid first before your kids see anything. But the jurisdictions are split. It can be what they say, reasonable attorney's fees, okay? Or an actual fee schedule that says something like, okay, if the estate is zero to $100,000,

the attorney gets 3%. But even if you're in that fee schedule, jurisdiction, there is always going to be a footnote that says these are minimums, right? Because once again, if your kids are fighting and I have to go to court every month for two years, I deserve compensation for that. So, you know, the word reasonable, I'm sure my idea of reasonable versus your idea of reasonable are completely different, right? You got some latitude there, yeah. Exactly. And as long as I'm not, you know, asking for a million dollars out of a million dollar estate, the judge is going to give me my reasonable fees. Okay. So those are the attorney's fees. But then you're also talking about

court costs. Okay. You know, those are specific to the county that you live in. Those are all public information too. You go pull up your county probate court costs. I call it death by a thousand paper cuts. Okay. Because it's $50 here, $100 here, $200 there. All of a sudden, you're up to $6,000, and that's just for the court to even, you know, process the estate. You know, so death by 1,000 paper cuts and other things that people don't realize, like publishing, you know, I don't realize of a lot of people know this, but we have to publish somebody's death in a newspaper for consecutive weeks. And that cost a couple bucks.

Exactly. I don't pay for that. There's a paper cut. Right, right, right, right. I don't pay for that as the attorney. Your estate does. So it's all these little things that you don't even realize. You know, the court's going to get their cut.

The attorney's going to get their cut. And then there's another cut monster laying out there called BIRS. And they're going to get their cut too. You know, so you have all these like mouths kind of chopping at the bit when you go through the court system because, you know, that's how really judges and court clerks and all that. That's how they get paid is through those fees. Is there a, and I know every case is different. But if it's not a crazy case like the Mark Lewis. the King 40 year, you know, dragging on. And if it's not like the easiest case in the world,

is there like some average number that you would say, hey, depending on the state and all the circumstances, on average, the fees and the percentage of the state, you can expect to pay about X percent because of probate cost in time. Is there something that, you know, in the back of your mind that you would go, you better be planning on paying at least this percent of the estate. Yeah, about 10 percent will go to attorney's fees and court costs. you know, like you said, it's case by case basis. It can be less. It's usually more.

So that's a very conservative estimate there of 10%. And also the duration of the cases, which, you know, depending on the complexity and if people are fighting and all of that kind of stuff, usually takes around two to three years. So I'm confident that what you have just described is the tip of the iceberg. And you can tell way more crazy stories and way. more, you know, roll your eyes. I can't believe that would have happened. Is there any way to avoid probate? Absolutely. And that is to go the private avenue. That is to make a trust and a private estate. Now, a private estate is going to have a lot of different legal documents inside of it, but your main vehicle to facilitate this transferring of title process without court supervision,

that's a trust. Yeah. You know, and I'll even say this. don't hear that and go, oh, cool, let me go to my friend Google, how to set up a and do it because you, you probably are not going to set up the right way. And I'll tell you, my dad passed away about a year and a half ago. My mom had passed away about three years before that. And they were smart enough. They were in Virginia. They had set up a living trust. And the house was all titled right and living trust, all that.

But so we were able to sell the house immediately. And between my sister and I, there's the funds done. but he didn't set up other things like, oh, his bank account was still in his name, not the trust name. And so now we had to deal with both the benefit of the trust, which was fast, yay, but then we still had to go through the Virginia probate for the other little, piddly little things. And it was just, it wasn't the end of the world, but it was like, oh, man, if he had just been given the guidance to get everything in there, so you cannot think you can do this on your own. That's, and that is what I run into all the time. That's why I'm on this mission to educate the public is because, yeah, you can go to legal Zoom and get your trust documents. But that exact thing you're talking about is actually called funding.

Now, when I say funding, that's a legal term of art. I'm not talking about paying a trust $2,000. I'm talking about the actual- thing your stuff in the trust. Yeah. In the trust, exactly. Yeah. I like to use this example of a fireproof safe.

Okay. So if you go out and you buy a fireproof safe and bring it home, cool, what's your next step? Put your stuff in it. You have to put your jewelry and stuff in the safe, right? Because if you don't do that step and your house is still exposed. You just had an empty safe. It didn't protect anything. So it's very much what a trust versus probate is, is you have to go through that funding process

and make sure all the titled and signature assets are properly funded into that trust. because if you leave something out, then we're going to have this combo. We're going to have a combo of a private settlement and the public probate settlement. And I have people come to me all the time with that. Well, my dad made a trust. Why am I still going through probate? I flip open the trust and it's like, well, where's the title to the house? Where's the, you know, where's the deed?

Where's this or that? Oh, he never took the time to do that. So, you know, yes, you can go to legal Zoom and make these documents. but a lot of people, they're just going to have an empty safe. They don't know how to fully protect themselves. Or you're going to put only your jewelry in the safe, but you forgot your other things that were really important. Like in my dad's case, you have a house is in there.

Actually, that was the most important thing because that was the biggest one. But you left off this and this and this. And that still caused us to have to go through and do, you know, craziness and paperwork. And like, as you know, we don't need to get into the weeds. But you mentioned about publishing the paper. we had to send letters to this air and that air. And if you don't, I mean, just it's just the, the little tiny detail. So knowing, yes, the process, but having someone to that's knowledgeable to go, okay, now we need to fund it,

which means put stuff in it. And then let's let's make sure like when we play the game of chess and we make a move and put her finger on it. Okay, before we finish this up, let's just double check here. Oh, we need to make sure to whatever. So make, you don't know what you don't know. And that's why, you know, you know, we've got the world at our fingertips so we can solve all kinds of problems with technology. But when it comes to matters like this, it literally will cost you much more heartache to try to do in your own and then later figure out, oops.

That's exactly right. That is why I created posterity legal. That's exactly what we do is we help people walk through this private estate planning process and make sure that all the eyes are double dotted and all the T's are double crossed. And furthermore, I also have a lot of people that will say to me, oh, I've got a will, I'm fine. And that makes like, you know, the vein on my forehead kind of pop out, okay? Because I think, you know, maybe it's Hollywood. I have a sneaking suspicion. It's my own profession.

Oh, sure. Just get a will. It's fine. Okay. Here's the thing with that. If all you have is a last will and testament, okay? That is your last testimony of what you. you are willing to happen or intending to happen.

Okay. Where is testimony heard? In court. In court, yeah. In court, right? So a last will and testament, if that's all you have, that's just your testimony that you have written down. It is still going to, it actually guarantees you're going to go put your family through probate court. Okay.

So I also, there's a lot of misinformation out there. And I know that, you know, people say, oh, I went to my attorney. He wrote me up a will for $500. Hmm, why would the attorney do that? Well, because probably they steele their, well, quick money for the 500 bucks, but here's the thing. They staple their card on the back of the will, knowing you're going to go put it in your filing cabinet, right? And then when you pass away, your kids go through the filing cabinet, they pull out the will. Guess who's cards there?

Right. And then guess what long process of hourly billing starts to happen for that attorney, the probate process. That's right. I've actually had an attorney walk me into his. filing room, which if you've ever been into a legal filing room, it's these rows and rows of filing cabinets, right? And he said, this is my retirement because they were all these bills. That's scary. Right. He's just waiting for those clients to pass away so that he can probate the case. And that's his guarantee of retirement. Yes. So that's why I say maybe it's Hollywood. Maybe it's our hive mind that we've

kind of been conditioned to do it this way. I have a sneaking suspicion. It's my profession. Yep. Well, I'm on. That's exactly why I'm on this mission. You are on a crusade to make it easy to prepare an estate to eliminate probate. And so if someone has listened to this going, there are way too many questions in my mind. What's the solution for them? How can they learn more and reach out to you and get that process started to prepare ahead of time so that these pitfalls are avoided? Yes, absolutely.

So you can go to, you can check me out on my website, Posterior. legal.com, P-O-S-T-E-R-I-T-Y-Y-Legal.com. You can call our office 833-3-3-99-8-5-85. That's toll-free 833-3-3-99-8-5-85. We're here to help. Okay, so yes, you go on the website. There's also a contact form. You can fill out. That will go straight to my assistant and we'll reach out to you. You can call. You can email us, all of that kind of stuff. So please, please, let me help you avoid this horror story that's over here on the government court side of things. Awesome. Well, thank you so much for coming on, Jennifer. It's been a real pleasure talking with you. Thank you for having me. You've been listening to Influential Entrepreneurs with

Mike Saunders. To learn more about the resources mentioned on today's show or listen to past episodes, visit www.com.com.