What Is Probate And Why Should I Avoid It?

Barrington Estate Planning and Wills Lawyer

What is Probate?

Probate is the process of proving and administering your will. The probate process makes sure your debts are paid and your property is distributed according to your will. If you don't have a will, State law determines how your property will be distributed. The probate court may also take control if you are unable to manage your own affairs.

The Main Reasons To Avoid Probate

• Privacy - Probate files are open to the public. Your heirs and beneficiaries may be exposed to unscrupulous individuals who hope to profit from their "good fortune".
• Time - Probate may take six months to a number of years and in many cases much longer. During this time, your heirs may be forced to ask for an allowance from the executor of your estate. If your assets are not liquid, the court may not approve the allowance.
• Expense - Fees and court costs must be paid from the gross value of your estate. This expense may amount to 4 to 10 percent of the value of your estate, before debts are paid, reducing the amount for distribution to your heirs.
• Control - The probate court, through your executor, has control over your estate. Immediate needs of your family may not be met, and your heirs may become frustrated at the delay.

Probate Will Affect You Even If You Do Not Have Much Money

• You might be surprised how much probate could cost your estate. The delays and loss of privacy of probate will still affect you, regardless of your financial worth.

The Probate Court May Have to Become Involved If You Are Incapacitated.

• In order to make any changes with respect to your property, a sale or refinancing, for example, if you are incapacitated, someone must sign for you. And unless other arrangements are made in advance, only the probate court, through its agent, may sign for you. Your family may be forced into probate court simply to do what is right for you.

All of my property is owned in joint tenancy with my spouse. Does joint tenancy avoid probate?

When one owner of jointly owned property dies, the ownership is automatically transferred to the survivor. But at the death of the second owner, the property must be probated. Probate isn't avoided, it is merely postponed.

• Joint ownership has some risks, too. As a joint owner, you are not in complete control, since both owners must agree to sell or mortgage the property. Also, as a joint owner, you may not "will" your portion of the property to anyone except the other joint owner. In blended families, you could unintentionally disinherit your own children or heirs of your choosing. Joint tenancy loses half the allowable tax deduction, which could prove to be a very costly error to an estate. Also, the property is exposed to the other owner's creditors and lawsuits.