Why Probate May Not Be As Bad As You Think…
The probate process is really quite simple. When a will is probated, it is submitted to the Court for validation. Once the will is determined to be valid, the Court appoints someone to administer the estate. This person, commonly referred to as the Personal Representative, is charged with gathering the decedent’s assets, paying all creditor claims and taxes, then finally distributing the remainder to the heirs according to your wishes.
Even if you die without a will, the same basic procedure is followed. The only difference is that without the instructions provided by a will, the Court distributes the estate’s assets according to the Laws of Intestacy, which vary from state to state. Contrary to a popular misconception, the State will not seize your estate’s assets unless you die without a single living blood relative of any kind, no matter how remote.
Why then has Probate gotten such a bad reputation? While the probate process can be lengthy [six to 24 months in some cases] and somewhat formal, this formality may also serve several important functions.
Probate offers a forum where disputes over the will and claims against the estate can be adjudicated with legal finality. Creditors have a defined period within which to file claims. If they do not file a claim on time, their claim is rejected, for good.
Probate also allows heirs to challenge the will. For example, imagine that your 89 year old, millionaire, oil-tycoon father fell in “love” with, and married, a former exotic dancer/ Playboy bunny/ celebrity of alleged ill-repute. You might wish to challenge her claim that your father told her, on his death-bed, that she could have everything, despite having a will that left his millions to you! Probate court is where you would file such an objection.
The most important function of probate is that it puts the Court and your Personal Representative (a person you trusted) in charge of making sure that your final wishes are followed to the letter of the law. There are many ways to avoid the probate process all together. Revocable and Irrevocable Trusts have their benefits. However, the bottom line is that after evaluating your circumstances, it is always advisable to consult with a qualified attorney who specializes in estate planning before your implement any such strategy.
