5 Reasons Why Probate Isn’t So Bad
Probate usually is understood to be something negative, something expensive. This misapprehension is prevalent because very few people have experienced the probate of an estate. All that they have experienced is seeing countless articles and hearing lawyers talk on how probate should be avoided at all costs. Clients seem to have become focused in tirelessly finding ways to avoid probate. Certainly, it can be well worth the effort to avoid probate especially when you know you have heirs ready to dispute anything and everything or if you have a not so ordinary family structure and a significant amount of assets. But for most people with modest estates and a relatively civil family, going through probate is not as bad as many estate lawyers make it seem. The probate process is essentially the Surrogate’s Court verifying the decedent’s will. The whole purpose of probate is to settle, manage, and distribute the decedent’s property based on the terms as stipulated in the decedent’s last will and testament.
If no contest is involved, the process, for the most part, is an uneventful court proceeding. There is no need to panic if you have to go through probate. Again, avoiding it can be a wise decision depending on your current state of affairs, but with most families, it should not keep you up at night. Here are some points to keep in mind that should ease your opinion on the process of probate:
- In a straight probate proceeding, with no will contests, the probate of an estate will be over before you know it. In general, it takes a minimum of seven months for Surrogate’s Court to close an estate. The allotted time period is mainly set for any creditors of the decedent to file their claims against the estate. If there are no complications and all heirs cooperate with the executor or the executor’s attorney, the assets can be distributed to the beneficiaries in less than a year.
- There are many instances in which clients transfer assets to avoid probate. The common scenario is that a client will transfer assets to their children or their spouse assuming that they will predecease their loved ones. It is important to take note that when surrendering ownership to your assets you also surrender your control of these assets. It is not always advisable to relinquish all control. Also, it may be the case that your spouse passes away before you do. This can quickly become a burdensome situation for you.
- A living trust, although a wonderful estate planning tool, may not encompass all assets you may own at the time of death. A popular estate planning strategy is to load up a living trust with all assets. It is a possibility you may have accumulated an asset later in life and it was too late to put it in the living trust. That means whatever property is not accounted for in the trust, it will need to go through the probate process. A trust is certainly recommended but never forget to have an up to date will with the appropriate provisions for assets which may have been overlooked. Always make sure all of your property is covered in the will that has not already been covered elsewhere in another estate planning document.
- Probate may be a creditor’s worst nightmare. If a creditor does not submit a claim against the estate in the allotted time set by Surrogate’s Court, they risk the possibility of forfeiting their rights to the money owed. Without probate, the estate may be subject to creditor claims that can last for several years.
- Be mindful that the goal of probate is to ensure that your final wishes are carried out. We forget that the probate process is there to lawfully distribute your assets in a manner that you deem to be fit. As long as your estate planning attorney takes all of the necessary precautions in drafting a proper will, which adheres to the proper will formalities, the court system is here to ensure your well drafted last will and testament will be strictly followed to make sure your wishes are met.
For the very complex estates where estate tax may be due, probate is not recommended. And for those individuals who hate extra bureaucracy and expenses, probate can seem daunting. But do not lose sleep over the possibility of dealing with this process. Instead of figuring out ways to hide your assets (legally, of course) to avoid probate, take the time to read over your will. Make sure it is updated. Also, contact the witnesses at your will signing and give them a friendly reminder that they serve as crucial parties in the event that they are called on to testify the validity of the will. As important and great as it is to have revocable and irrevocable trusts at hand, an ironclad will is always crucial to ensure that your final wishes are not disrupted.
Preparing a last will and testament is a very simple method but it works miraculously – try it.