By Robert J. Green
When I first meet with clients they frequently tell me that they need to “avoid probate”. They less frequently know what probate is, or why they want to avoid it. To determine if you should be trying to avoid probate, you must first know a little about probate.
Probate is a court-controlled process that takes place after a person’s death. When a person passes away, they usually leave both possessions and obligations behind. However, family members cannot typically just start “taking care” of those possessions and obligations on behalf of the deceased without permission from a judge. Instead, a judge usually needs to order that a particular person has the authority to take care of duties related to bills, finances, taxes, and making sure possessions are given to those who stand to inherit them. The person taking on that role is called a Personal Representative or an Executor, and he or she has the authority to deal with these matters because a judge has given him or her that authority as part of the probate process. A person’s last will and testament will help guide the judge and the personal representative as to how to carry out the probate.
Can’t all of that court involvement be avoided? We’ve all seen ads encouraging everyone to avoid probate. We are told that probate is expensive, complex, and time consuming. When this is true, creating arrangements such as living trusts, so that probate may be avoided, could be very appropriate. For some people, however, the probate process will be a simple, efficient, and relatively inexpensive way to handle their final estate. For those people, a well-drafted last will and testament will likely be all that is needed to direct the probate process for the best outcome.
The point here is that there is not a one-size-fits-all answer to whether a person should be trying to avoid probate.
Consider using these questions to get some advice from an estate planning attorney about probate:
1. Do you want a private process?
Generally, all documents filed in a probate matter are public records and are available to anyone to read or copy. This includes the will and any lists of final distributions to beneficiaries. Many of my own clients do not like the lack of privacy involved with probate, and prefer to find a way to keep the entire matter private and within the family.
2. How long will probate likely take?
It is generally presumed that the probate process takes a long time and that property will be tied up for the duration. However, lengthy probates are not always the norm. Many factors will impact the length of a probate matter and some of those factors are out of our control.
3. Will avoiding probate be easier on my loved ones?
My clients often want to leave their families with the least complicated situation possible. For some families, avoiding probate could make things less complex for those the deceased leaves behind.
Discuss these topics and more with an estate planning attorney to help you determine what is right for you. Some law firms, like ours, will even offer free consultations to potential clients concerning estate planning and probate. Never hesitate to get specific advice for your specific situation.
This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.