By: Jennifer (Jenny) Rozelle, Owner & Attorney [Probate]

Peace of Mind Starts Here

Summary: This blog post clarifies the process of probate and the reasons why a person might want to avoid it. It details the costs, time commitment, and potential for family disputes associated with the process. The post also offers guidance on how to avoid this court process, offering various options that best suit your needs.

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What Is Probate?

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.

It 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 $100,000, probate is required. (If the assets are less than $100,000, 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 assets distributed appropriately to the beneficiary(ies) listed in the Last Will and Testament. If the individual does not have a Will, the estate will be distributed according to the state’s intestacy laws, which are a built-in estate plan in state statutes for people who pass away without a Last Will and Testament.

Should I Avoid Probate?

Well, that is up to you! I am a firm believer that there is no one-size-fits-all estate plan. Some individuals could not care less about avoiding it 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 there are three primary reasons individuals want to avoid probate and from there, you can decide. They are:

1. 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 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.

Can It be Avoided?