(1) submitting a deceased person's will to probate court,
(2) proving the will is authentic and properly executed,
(3) inventorying and appraising the deceased's assets,
(4) notifying creditors and relatives of the probate proceedings, and
(5) publishing notice of the proceedings in a local newspaper.
While these steps may appear simple and easy, the following are four reasons to avoid having your estate probated:
Probate Proceedings are Open to the Public
Clients are often worried about an heir finding out he or she has been left out of the will or that an heir is not going to receive what he or she feels is deserved. Sometimes clients want to keep certain bequests secret from other heirs.
More often than not, clients just don't want heirs telling the whole world how much money they have.
Given the above, it is often shocking to clients when they find out that when they die their will is going to be made public and that anyone who wants can just drop by the courthouse and inspect the will once it has been probated.
Property Owned "out-of-state" Requires a Separate Court Proceeding
A will is generally probated in the county where the person resided at the time of his or her death.
Any property owned in the state where the person resided is usually subject to the jurisdiction of the original probate court. However, any property owned "out-of-state" falls under the jurisdiction of the probate court where the "out-of-state" property is located.
This requires the original executor of a will to file a separate proceeding in the new state, and likely require a new attorney and additional fees.
The Average Probated Estate Can Take A Year or More
Even if the will proving process goes smoothly, the inventory and appraisal process along with locating heirs and creditors generally takes time.
In some instances, the probate court will allow for a small immediate "family allowance" to try to hold the deceased's immediate family over until the probate process has concluded.
It may seem odd that immediate family members would have to apply to the court for the use of its own money, but that is how the probate process is set up. In any case, it can take a year or more before the entire probate process is wrapped up.
In the meantime, heirs are left having to make do until their bequest is finalized.
Probate Can Be a Waste of Money
The national estimated average of probate costs (attorney fees, court fees, appraisal fees, etc.) can be as high as five percent of the deceased's estate.
If there is a legal fight between the heirs the costs can be much higher.
For information on how to avoid probate, you may want to look at my articles on:
Setting up a trust
Executing an enhanced life estate deed
Life estate deeds
Transfer on death deeds
Payable on death accounts, and
Joint tenancies with right of survivorship.
