Why Should “Probate” Be Avoided After You Die?

How to Avoid ProbateI am asked this question frequently and I want to explain why most people should create estate plans designed to avoid Probate.

What is Probate?

“Probate” is the court-supervised process of collecting and then distributing a deceased person’s assets (their personal property such as bank accounts and mutual funds, and their real estate).

It usually includes some of the following:

  • proving in court that the deceased person’s Will is valid (if they had a Will);
  • identifying and then preparing an inventory of the deceased person’s real and personal property;
  • paying the debts and taxes of the deceased; and,
  • distributing the property according to the terms of the Will, or if there is no Will then according to state law.

Probate involves paperwork and usually court appearances by attorneys (although lawyers aren’t required). Court filing fees and attorney’s fees are paid from the property of the estate.

If the deceased person left a Will, a Personal Representative will have been named. The Personal Representative is the person named to identify and collect all of the assets of the deceased person and to see that the terms of the Will are carried out.

What’s So Bad About Probate?

Probate generally involves two things: time and money.   Between court costs, filing fees, publication fees and attorney’s fees, probate can be expensive. It can also take months or even years for your estate to wind through the Probate Court.

Probate is also a public forum. This means that anyone can look at the files which contain information about the property of the estate and its value. They can also learn the identities of the heirs.

For all of these reasons, probate is a process that many people should try to avoid. And, it can usually be avoided by using a living trust. (Take our “Living Trust Quiz” to see if you could benefit from a living trust).

To learn more about the probate process and how to avoid it by using living trusts, contact Estate & Elder Law Attorney, Andrew Garcia at SouthCoast Estate Planning and begin to secure your legal and financial future now.

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