Even if it's unpleasant to think about, it's important to make legal preparations for the end of your life. In particular, you shoul determine what will happen to your estate. A will helps simplify probate, but does not allow you to avoid it. For a couple of important reasons, it might be best to avoid probate altogether.
What Is Probate?
Probate occurs after your death and is the process through which your assets are distributed. In probate, the court takes an accounting of all your assets, uses those assets to pay off any debts you had and then distributes the remaining portion to your heirs. If there is a will, the court will usually follow the wishes of the deceased.
Why Should I Avoid Probate?
As you can see, probate is an integral part of asset distribution after someone's death, however there are several drawbacks to allowing your estate to go through probate. These include:
1) It's Expensive: Probate can be quite expensive, even though costs vary from state to state, some states can charge up to 5% of the total value of your estate in court fees. Additionally, if you have left property to minors with no guardians assigned, the court can use a portion of the estate to assign lawyers to those minors in order to help protect the minors' interests. This means that the estate will not only have to pay court fees, but lawyer fees as well, leaving less for your heirs to inherit.
2) It's Slow: Probate can tie up your estate in the court system for a significant period of time, anything from a few months to a few years. This is because court approval is required for many thing in probate and that approval takes time to receive. Probate is particularly time consuming if your estate is complicated or if your heirs are contesting portions of your will. Timing also ties in with the reason above as the longer it takes for your estate to come out of probate, the more money your estate will have to pay for storage fees, attorney fees, and even taxes.
3) It's Public: As probate is a court proceeding, all information revealed in probate is considered public. So information about your assets, your debts, and who you left money to will all be available to the public. This means that anyone can go to the courthouse and request to see your probate file with all that information. Some states even allow people to access probate information online. This can be troublesome for you if you wanted to make sure your heirs didn't know who was getting what and can be troublesome for your heirs as it might make them targets for thieves if you leave something particularly valuable to them.
As you can see there are many reasons as to why you should avoid probate. One way you can do so is by having an experienced estate lawyer create a living trust for you. A good estate lawyer will be able to not only help you avoid probate, but can also help you draft your will and can advise you on what solutions are the best for your particular estate.
