Probate is a word that is often tossed around quite casually. As a result, there is an immense amount of inaccurate information “out there” which causes an immense amount of confusion. What a vicious cycle! Let us start with figuring out what probate actually is.
What is Probate?
Probate is the legal process—ahem, it requires lawyers— that may occur after an individual dies. If the individual has assets in his/her name alone that exceed $50,000, probate is required. (If the assets are less than $50,000, it is possible to work under small estate laws, which will not be discussed in-depth here.) The Court appoints an Executor/Personal Representative and that individual has the duty to get your assets distributed appropriately to the beneficiary(ies) listed in the Last Will and Testament. If the individual does not have a Will, see Kyle’s blog here.
Well, that is up to you! I am a firm believer that there is no one-size-fits-all estate plan. Some individuals could care less about avoiding probate while other individuals tell me “Jenny, I don’t want my family going through a Court process after I pass. What can do I do avoid it?” What I can tell you is that there are three primary reasons individuals want to avoid probate and from there, you can decide. They are:
- It can be costly. A vast majority of lawyers will take a percentage—around here, it is on average 3-5%—of the decedent’s estate to take a client through probate. Some lawyers, of course, still charge via hourly billing to go through probate. Regardless, however, there will be legal fees of some fashion simply because the process requires lawyers. There are also filing fees, publication fees, and (sometimes) recording fees.
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2. It often takes a while. Once the paperwork is filed with the Court, there is an automatic 3 month “waiting period” that is for creditors to place claims on the estate. Therefore, at the bare minimum, the probate process will take at least 3 months. However, if any complications arise, there is no “maximum” time limit. The longest probate case we have worked through took 6 years. Yikes!
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3. It is the land of the unknown. I feel like I have seen it all—family fights, beneficiaries hiring lawyers of their own, and “Mom chose her as the Executor?!”—and in my experience, it all depends on 3 things: 1) the people involved, 2) the relationships of the people, and 3) the personalities of the people. Unfortunately, those three often determine whether probate will be quite easy or a complete nightmare.
How Can I Avoid Probate?
Avoiding probate is rather easy. In fact, there are multiple routes you can take to avoid probate. It just requires learning how and applying it to your plan. A great starting point would be to attend our next workshop (Click Here To Register) – “Making the Pieces Fit: The ABCs of Estate Planning.” We welcome the opportunity to be your estate planning and elder law resource.
Jennifer Rozelle, Law Clerk - Hunter Law Office