A Word About Probate

Posted by Harvey L. CoxAug 20, 20210 Comments

All property left by a Will must go through probate.  Probate is the legal process by which a Will is “proved” and accepted in court as a valid last testament of the deceased.  Once the Will is proven to be valid, the legal process of administering the estate of the deceased begins.  The administering process involves distributing property according to the Will.  Probate can be a tedious and expensive proceeding.

The critical thing to know about probate is that it is unnecessary.  You can plan your estate in such a way that you avoid probate altogether.  The probate process is costly, time-consuming, and provides no benefits to your beneficiaries.  The process is nothing more than a clerical and administrative process.  In the vast majority of probate cases, there are no contests and no conflicts.  Without contests and disputes, there is no need for lawyers or courts to be involved.

Probate does not require a lawyer to conduct extensive research, draft complex pleadings, or even use adversarial skills.  Most probates are entirely uneventful.  The process involves the executor providing a copy of the Will to the lawyer, who initiates the court proceedings.  The process then drags on for months or even years as lawyers file papers and court hearings are taking place. Finally, a judge allows the distribution of your property to the beneficiaries.

People who defend the probate system, mostly lawyers (are you surprised?), claim that probate prevents fraud in transferring a deceased person's assets.  They also assert that it protects beneficiaries by promptly resolving the creditor's claims against the estate.  The truth is that very few estates need these “benefits” because very few estates face allegations of fraud or complicated debt issues.  The wiser course of action in estate planning is to create a plan with probate avoidance as a top priority.