Why Do People Want to Avoid Probate?

 In Probate

At its most basic elements, probate is an organized process by which:

courtgavel

  • the property of a deceased individual is gathered,
  • remaining debts are paid,
  • beneficiaries are determined, and
  • property is transferred accordingly

To probate, or not to probate: that is the question.  For some, the concept may seem daunting—but it truly doesn’t have to be.  I’m always glad to inform my clients that the state of Texas has made the process relatively simple and efficient if you have a valid will.  A valid will is the key.  Simple and efficient = less time and money.  (If you don’t have a valid will, then you and I need to have a different conversation altogether.)  Yet, in some states, even the best of wills won’t save you from an arduous probate process that can be very time-intensive and very costly; that’s why trust planning is hugely popular in states like California.

Estate plans that avoid probate

With that said, however, Texans still have reasons for considering an estate plan that avoids probate.

Lack of Privacy: Did you know that when a will is filed with the court for probating, it becomes public record?  That can come as a big surprise to many – after all, a will is a very personal document.  Even if reporters aren’t eagerly waiting to publish the details of your will as they were with Jacqueline Kennedy Onassis, it can still feel a bit invasive.

An Open Door to a Will Contest: While most of us don’t have to worry about the general public taking an interest in the details of our will, certain individuals might be keenly interested.  A large estate will be especially vulnerable to attacks.  What if there is some question as to the validity of the will? Family members that aren’t beneficiaries of the will (or perhaps received a lesser portion than they felt entitled to), but who would have inherited a substantial amount of money under intestacy laws, might be chomping at the bit to have the will declared invalid.  What if the will presents a conflicting method of transferring an asset?  For example, a decedent leaves his vacation home to his children from his first marriage, but the home is a Joint Tenancy with Right of Survivorship with his second wife – now we’ve got a question of intent to wrestle with.

No Access to Cash: While your estate is being probated, your assets will be unavailable until the process is complete.  This delay often means no immediate access to cash, which can be problematic for family members trying to pay your bills, or for costs related to the funeral.

Creditors and Predators: You may also want to consider that the public nature of the probate process can expose the individuals who will inherit your estate to creditors and predators.

Here, I’m not talking about your creditors; I’m talking about the creditors of those who will inherit under your will.  For example, a widow leaves her estate to her only son, hoping to help him pay for her grandchildren’s college education.  She trusts her son and doesn’t want the fuss of any special planning.  However, she is unaware that her son has creditors from a failed business venture that will seize his inheritance to pay his debt.  Had she known, she could have set up a trust for the grandkids instead of leaving it to her son outright.

Making the best decisions for your estate

Another consideration in certain circumstances will be predators.  Thebest example of this is probably found in scams targeting the elderly.  This is often why an elderly couple comes in to my office and requests protective planning, such as a living trust for the surviving spouse in which a reliable co-trustee, such as an adult child, will join the surviving spouse in making financial decisions.

As always, these are just a few of many considerations in determining the best plan for your estate; by no means do I recommend that everyone try to avoid probate – in fact, that is more often not the case.  Your family is unique, your estate is unique, and your goals are unique; an excellent estate plan will reflect all of the above.

Our team of attorneys in Allen are to help you with your probate needs

Contact us for more information today

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