Why should I avoid probate?
It has been a common perception that probate should be avoided at all costs. There are many reasons to avoid a probate court.
- Probate is a complicated hassle involving lots of paperwork and decision-making.
- The whole process requires a lawyer and intrusion of the court into a very private, family, and emotional event.
- Probate takes time and ties up your property for months, and sometimes even years.
- Probate is expensive as it involves court costs and fees to the lawyers, accountants, appraisers, and executors. Probate expenses might take up to 5% to 10% of the estate’s value.
- It might also hamper your asset management. When assets are caught in the probate process and the executor is unable to sell stocks on their way down or real estate when it’s depreciating, it may force him or her to cash out other assets in order to continue paying for the probate.
You can generally do without probate. There are a number of other ways besides probate to pass property to your inheritors.
What exactly is probate?
It is the process by which the legal title of property is transferred from the estate of the deceased to the beneficiaries of that person. If a person dies with a will, the probate court evaluates the validity of the will, hears any objection to the will, orders that the creditors be paid and looks after the process ensuring the property is distributed according to the terms and conditions stated in the will. And, if a person dies without a will, the probate court appoints a person to receive all claims against the estate, pay creditors and then distribute the remaining property according to the laws of the state.
Somebody acting on the behalf of the decedent must come forward with the will. This person is known as the executor, chosen by the decedent. If there is no will, someone must ask the court to be appointed as the administrator, to perform the same function.
A typical probate process goes as follows:
- The will is filed with the local probate court and becomes a public record.
- The executor or administrator conducts an inventory of the property.
- The family’s property is appraised.
- The creditors are paid, and death taxes are paid.
- The court validates the will.
- Expenses like court costs, attorney’s fees, and executor’s fees are paid from the estate.
- The remainder of the estate is distributed to the loved ones.