Probate is the court-supervised process for distributing a deceased person’s assets, including their money and property. The operative words are “court-supervised.” There are pros and cons to probate. While lawyers often focus on probate’s negative aspects, there are also some benefits. First, look at the benefits and then identify reasons to avoid probate.
Each of the following three factors depends on the state law that governs the proceeding and the value of the property in question. Sometimes the “seeming” negatives are also positives. Here are the factors:
- Concerns regarding the Proper Execution of Wishes.
Sometimes you may be challenged to find a qualified person to honor your wishes. In those cases, you might have the court make the call for you. The court will oversee the process and make sure your wishes are honored. The court will honor your wishes as long as you request what is permitted under state law.
- Concerns regarding Family Disputes.
You might also consider probate when there are family disputes among heirs. An heir is someone entitled to receive assets at your death. While privacy is often preferred in estate planning, making the preceding public encourages accountability among family members. If an heir knows that their every action will be under a microscope, they might be more inclined to behave. In addition, if your heirs know their behavior might become public knowledge, they are less likely to contest your will.
- Concerns regarding Significant Debt and Insolvency.
When someone dies, the law generally requires that all debts and bills be paid before distributions are made to heirs. Having the proceeding managed by the court can make everything transparent. This is especially true if the bills and debts are high relative to the estate’s value. The court can also determine how creditors are paid and how much they are paid. Moreover, creditors are required to submit to whatever rules the court has imposed to get paid.
Let’s now turn to the reasons one might choose to avoid probate:
- Public record.
Almost everything that involves a court process becomes a matter of public record. That includes probate. So all family and financial information documents could become available through the probate court. This would allow access to anyone who wants to see them. While such access might not include bank account and social security numbers, it would consist of the value of your accounts and property, creditor claims, the identities of your beneficiaries, contact information for your loved ones, and even disputes regarding your assets.
- Cost.
Even for a small estate, probate can be costly because of court costs, attorneys fees, executor fees, and other ancillary expenses. Add the possibility of family disputes and claims by creditors, and the cost of probate increases exponentially. For every dollar used to cover these costs, a dollar is taken out of the pocket of your heirs. No doubt, if you have an estate plan that avoids probate, there will still be costs. You may pay a bit more upfront with a trust-based estate plan. But, the costs you incur to implement a plan are more easily controlled than the indefinite expenses your heirs will incur. Planning accordingly saves your heirs in the long run.
- Duration.
Probate is not a quick-fix process. It takes time, which usually depends on the size of the estate, the value of the estate, how complex the assets are, and where the assets are located. The probate process can be exceedingly tedious if you have assets in different countries and other states. This court-supervised proceeding can be a minimum of six months to a year or more, even for simple estates. And truthfully, when it comes to legal matters, nothing is simple.
To learn more, contact my office and schedule a complimentary consultation.
Francine D. Ward
Attorney-at-Law, Author, Speaker
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