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Avoiding probate: why and what to do instead

On Behalf of | Feb 23, 2024 | Estate Planning |

Probate and estate planning may not seem like the most exciting topics to discuss. However, what if I told you that by avoiding one and choosing another, you could save yourself and your loved ones a lot of time, money and headaches?

Many people, upon evaluating the pros and cons of going through probate, choose to avoid it. Why they do this has a lot to do with the fact that probate offers fewer advantages than benefits, as opposed to estate planning.

What is probate?

Probate is the legal process of handling a person’s things after they pass away. That is, if they do not have an estate plan set up and in place to avoid the probate process.

The legal process of probate is not in itself bad and it has its place in our communities because not everyone dies with an estate plan in place, so the courts have to have a process to deal with these people’s assets.

Why avoid probate?

When people choose to avoid probate, it is typically because:

  1. Probate can be a slow process, which can feel like being stuck in the slowest checkout line at the grocery store but instead of waiting for minutes or an hour, it could be months or years before the probate process is complete. This can be an issue for the people in the will who are waiting to receive their share, if the person left them something.
  2. Probate is costly because you must pay court costs and frankly, almost everyone hires an attorney to oversee and manage the process on their behalf.
  3. Probate is public and in many cases, this reason alone can cause people to contest the will. Because the will is public, so are the names of the beneficiaries, and people who believe they should receive a part of the will can contest it, which lengthens the process even more and adds costs.
  4. Probate can lead to family squabbles, particularly because it is public, so everyone can know who the heirs and beneficiaries are, whereas with a trust within an estate, a beneficiary can remain anonymous.

Why estate planning?

Estate planning is sort of like leaving detailed instructions for a babysitter, except it is a document that you create with your attorney that states what you want to do with your things.

A comprehensive estate plan usually includes a will, a trust, a power of attorney and health care directives. You can use these tools to decide for yourself what you want at the end of your life (for example, what type of care) and select your beneficiaries.

Creating an estate plan is not as complicated as people make it out to be and many choose it over probate because of its many advantages. Make sure you discuss these pros and cons with your estate planning attorney.



Photo of Jennifer D. Sharpe