It has become common for people to assume that probate is something to be avoided at all costs. While it may be a good idea to avoid probate, the probate process exists for a reason and in some cases it can offer important protections and clarity.
So is probate really bad? Let’s explore some of the benefits and drawbacks of probate court.
Why Probate May Be a Good Idea
Probate can provide much needed structure after someone passes away — particularly when no estate plan is in place. If a person dies intestate (without a valid will), the probate process offers a step-by-step system for identifying heirs, paying debts, and transferring assets. And while it may not be quick, it is predictable.
One of probate’s key functions is to ensure that the estate’s debts are settled properly. Creditors are formally notified and given a window of time to make their claims. If they don’t respond within that period, they lose the ability to collect. This process can offer peace of mind to heirs knowing they won’t have to worry about creditors appearing later claiming a right to the estate.
Probate court oversight can also help heirs and beneficiaries feel that there is accountability. If there are questions about fairness or legitimacy, court supervision can bring a sense of transparency and trust. For some families, having an objective legal process in place can reduce disputes and help ensure everyone feels they were treated fairly.
Why Probate Might Be Bad
First and foremost, probate takes time. The full process can take between six months and a year. However, in cases involving complex assets or complicated family dynamics, the process can drag on even longer. Distributing the decedent’s estate to heirs happens at the end of probate, which means that a lengthy process leaves beneficiaries unable to access their inheritance.
Probate is a court process, which means there are court costs associated with it, as well as the likelihood of attorney fees, executor fees, and so on — which all come from estate assets. By the time the process is complete, a significant portion of the estate may have been spent on administrative costs which otherwise could have gone to the beneficiaries.
Another important downside is the lack of privacy. Probate is a public process. That means anyone can access the court records and see what’s in the estate, who’s receiving what, and how the process unfolds. For families that value discretion, this level of exposure can be uncomfortable.
And of course, the emotional toll should not be overlooked. Navigating court hearings and legal paperwork during a period of grief can be overwhelming.
Understand Your Circumstances
As with most estate planning decisions, whether to avoid probate depends on your circumstances. For some, the process is perfectly manageable. For others, the time, cost, and public nature of probate are enough to prompt a different approach.
With some thoughtful planning now, you can help ease the burden on your loved ones later. Let’s start the conversation about your estate. At HH&J, we offer a free consultation for our potential clients so they can explore their estate planning options.