Let’s begin with a moment of candor. Probate serves many important and useful purposes, particularly for the more than one-half of Americans who will die without any estate planning. Yes, even in this day and age, most people who die, do so without even the benefit of a will. For the rest of us, who realize the importance of estate planning, the benefits of probate may not outweigh the potential disadvantages, which are many.

WHAT IS PROBATE? Probate is the legal process through which the court oversees that, when you die, your debts and taxes are paid, and your assets are distributed according to your Last Will & Testament. If you don’t have a valid Will, your assets are distributed according to state law. In other words, the State writes your Will for you.  The probate court also determines whether an individual requires, because of disability, incompetency, or incapacity, a guardian or conservator to manage their life, affairs and/or assets.

PROBATE CAN BE EXPENSIVE! Legal and executor fees and other administrative costs, such as valuations and appraisals, must be paid before your assets can be fully distributed to your heirs. If you own property in other states, your family could face multiple probates, each one according to the laws in that state. Because these costs can vary widely, be sure to get an estimate!

To demonstrate the possible expense of probate, please consider the fee that the executor is permitted to take , and the fee that the attorney representing the executor is permitted to take. Notice that the attorney, in addition to a percentage of the probate estate, is entitled to a percentage of all of the assets that pass outside of probate, such as life insurance, retirement benefits, and assets paid by direct transfer designations! The combined executor and attorney fee for an estate valued at $600,00.00 could be as much as $36,000.00, and does not include expenses, appraisal fees, accounting fees, bond and insurance expenses, and the like!

Probate Takes Time. Probate usually takes some time, nine months to two years, but often longer. During much of this time, assets are typically frozen so an accurate inventory can be taken. Typically, nothing can be distributed or sold without court and executor approval. If your family needs money to live on, they must request a living allowance, which may be denied.

Probate Lacks Privacy. Probate is a public process, so any “interested party” can see what you owned and who you owed. The process “invites” disgruntled heirs to contest your will and can expose your family to unscrupulous solicitors. Moreover, much of the information is avalable to the public, sometimes through the internet. Can you think of anything you would less like third parties to have access to than a complete inventory of personal property divided by room in the house, complete with the value of each item?

Your Family Has Little Control. The probate process determines how much it will cost, how long it will take, and what information is made public.

More Challenges. There are more risks and challenges presented by the probate process.   For example, the probate process may actually encourage or invite legal disputes. A complete discussion is beyond the limited space available on this website. For a quick education, go to your favorite bookstore. You will be struck immediately by the large number of books written about trusts, and other techniques designed to avoid probate, and how few books are written about planning FOR probate.

Release and Summary. For smaller estates, in particular circumstances, there is the possibility of being relieved from administration upon application, and for very small estates, there is the possibility of a summary administration. The requirements for obtaining a release from administration are set forth on the form you can view here. The qualifications for a summary administration are here.

Most estates do not qualify for relief from probate administration, as most estates exceed the qualifying amount. Moreover, as you might discern, the relief does not eliminate court involvement, only the more expensive full administration.