Probate can drain time, money, and privacy. Here’s why it creates headaches—and the smart moves that help you avoid it.
Wills have long been utilized as a classic estate-planning tool. But it’s not enough to write up a will and call it a day. Once someone with a will passes away, a court needs to validate it via a process called probate. And that process could be more than you’ve bargained for.
Why invite chaos into your life or that of your heirs? By avoiding probate, you can make life so much better after a loss.
What Is Probate?
Probate is the formal legal process that proves a will’s validity and allows a deceased person’s assets to be distributed. And the way that process works can vary from state to state.
When a person with a will passes away, that will’s executor is typically responsible for initiating the probate process by filing the will with a probate court. The executor will then commonly hire a probate attorney to oversee the probate process.
When there’s no will, a person is said to have died intestate. In that situation, a probate court will typically attempt to distribute the deceased person’s assets in accordance with state laws.
Probate courts determine what assets, beneficiaries, and creditors are associated with an estate. It’s typically the responsibility of an executor to inform beneficiaries about the death of the deceased, and it’s a requirement to put out a notice to creditors giving them an opportunity to make a claim against the estate if applicable. Probate will also pay any taxes owed by the estate.
The Problem With Probate
You’ll often hear that the process of probate can be both costly and time-consuming. Genny Bernstein, an estate-planning and elder-law attorney at Jones Foster, agrees that both points are spot-on.
Terrible: Probate Can Take a Long Time
Bernstein explains that probate can easily take nine months to a year, but it can also take longer because “it’s a series of court orders with certain time measurements you need to meet.”
Bernstein explains that almost every state has a creditor claim period that must be fulfilled before the process can proceed.
“In Florida, they need to publish 90 days’ notice to creditors that they have the right to file a claim against the estate,” says Bernstein. “So during this 90-day process, you’re just marshaling assets… You can’t make distributions or do anything until you wait out that 90-day period.”
By Maurie Backman From Kiplinger’s Personal Finance
