3 Reasons to Avoid Probate
Why do so many professionals who work in the estate planning industry advise you to avoid probate at all costs? We will go into greater detail in just a moment, but here are the main reasons why you may want to consider preparing an estate plan that will allow you to avoid the probate process: (1) probate is slow, (2) probate can be costly, and (3) probate is public.
First, Probate is slow. The probate process does move very slowly. The timing of this process is controlled by statute in each state. One of the great benefits of probate is that it can reduce the amount of time creditors have to file a claim against the estate. Typically, a creditor will have a time of one year to file a claim against a deceased person’s estate. Anything filed against the estate more than one year following the date of death will be void and unenforceable. But, many states allow you to run a notice to creditors in the newspaper following the death. This notice generally runs one time per week for three weeks. Following that publication, the creditors’ time to file a claim is shortened to something like eight months. But you can see, that there is typically going to be some period of waiting on this creditors’ claim period to expire in probate. There are also strict timelines about when each of the required forms are due to the Court that spread throughout the probate period. It is not unusual for a probate estate to be open for a year or more. That means it can take a year or more before any probate assets are distributed among the heirs or any claims are paid out of the estate.
Second, Probate can be costly. The truth of this statement varies from state to state. Some states are very “probate friendly” and charge a minimal estate fee. Other states charge much higher fees. Still, other states, mandate by statute what a lawyer’s fee shall in a probate estate. On top of probate court costs and attorney fees, the personal representative may also charge a commission to the estate for their work. All of the costs associated with the estate are typically a percentage of the gross estate value. For example, some states require that the attorney receive 5% of the gross estate value. That doesn’t sound like a large percentage right off, but when you consider a modest estate with a home, some cars, and other property may easily have a gross estate value of $400,000.00 that would require an attorney fee of $20,000.00 that comes out of the estate and ultimately away from the people the testator wanted to receive the money or property.
Third, the probate process is public. That means, anyone – ANYONE – can go to the courthouse and pull out your loved one’s estate file and see names and addresses of heirs and beneficiaries, a complete inventory of the property they owned, bank accounts they had, and the values. This is pretty disconcerting and can be downright scary when you consider all of the information that could be made public through one estate.