what is probate and is it really that bad?
I often speak with individuals whose loved ones have passed away and who then went through the probate process. As these individuals discuss their experience with probate, their facial expressions often range from horror to a subtle and disappointed shaking of the head.
So, what is probate and is it really that bad?
Probate is a court-supervised process that distributes your property according to state law, which may not reflect your personal wishes.
This process includes proving in court that the deceased person’s will is valid (if there is a will), appointing a legal representative to act on behalf of the deceased, identifying and listing the deceased person’s property, having the deceased person’s property appraised, paying any debts and taxes owed by the deceased, and then distributing the remaining property to the beneficiaries or heirs as directed by the will or state law.
The three most challenging aspects of probate can be summed up as follows:
1. It’s expensive: For an estate valued at $1,000,000 (which includes the value of your home), probate costs can be as high as $55,000 in California and $35,000 in Texas —funds that would otherwise go to your loved ones.
2. It’s time-consuming: Probate in California can take 12 to 18 months or longer, and 8 to 12 months or longer in Texas. During this period, your assets will be tied up, delaying your loved ones’ access to their inheritance.
3. It’s stressful: The probate process can add significant stress during an already difficult time, as your family navigates legal complexities while grieving.
So, can I avoid probate and if so, how?
Yes, you can avoid probate by creating a trust. The creation of a trust and the placement of your property in the trust will allow you to bypass probate. Avoiding the expense, time, and stress associated with probate is but one of the many advantages of creating a trust. Additional benefits include:
Control- Creating a trust allows you to specify detailed instructions on how and when your assets will be distributed to beneficiaries, as well as who will make decisions for you in case of incapacity. Having a trust allows you to make these important decision within the privacy of your living room versus being made by strangers in the court room.
Privacy- Trusts are not public record, unlike wills, which become public record during probate. This means that a trust can keep your estate matters private, including the assets you owned and who inherits them.
Protection from legal challenges- Trusts are generally harder to contest than wills and can escape common objections like incapacity or undue influence.
The probate process is costly, time-consuming, and emotionally draining for your loved ones. By creating a trust, you can avoid the pitfalls of probate and ensure that your assets are managed and distributed according to your wishes with minimal stress and delay. Having a trust in place offers financial and procedural benefits while saving your loved ones from significant hardship in the future.
Warm Regards,
Matt Bushman, JD
