What is probate and why do people want to avoid it?

You may have heard people discuss probate and how horrible it is.  But what in the world is probate?  And why do people want to avoid it?  Probate is, simply, when the court has to get involved to help transfer assets after someone has died.  This court process is set up to make sure things are done properly and the family is aware of what is being done.  As a result, there are several truths about probate that cause many people to want to avoid it:

Public Process  Your last will & testament, as well as the probate court documents, are all public record.  Your nosy neighbor could go to the courthouse, or maybe just look online, to see where you are leaving your assets.  She may also be able to see how much you were worth at death and where you owed debts.

Delay  Because of the court process and various required tasks (petitioning the court, publishing a claim notice, notifying family members, reporting to interested parties), there is additional delay before the estate can be finalized.  At a minimum, probate will usually take 8-10 months, and often takes 18-24 months.

Expense  Because of the additional tasks required by the court process, there is additional expense involved, both in paying the attorney but also in publishing notices and providing reports to the rest of the family.

Reminders to Contest the Will  One of the required probate steps is to notify the family of the last will & testament being admitted to the court.  As part of this notice, all family members (who are legal heirs according to the law) are given notice of the proceedings as well as a reminder that they have the right to challenge the Will.  The notice even gives them the deadline for challenging the Will and basic steps to be taken.  So, the lack of privacy is an issue, not just with the nosy neighbor, but also with the family troublemaker who was purposely left out of the estate plan.

To learn more about wills, trusts and other estate planning issues, check out the Wills and Trusts section of our website.

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