What is Probate?
To answer why you should avoid probate, it’s important to start with an explanation of what probate is. Probate is the court process by which a deceased person’s property is distributed when there is no clearly and legally identifiable owner of the property. If there is “stuck” property like this, a lawyer for the estate will file a probate case with the probate court. The probate filings essentially ask the court to appoint a personal representative of the estate to validate a will (if there is one) and help with the distribution of the “stuck” assets to beneficiaries.
“Stuck” assets may include, to just name a few: accounts or real estate owned solely in the deceased person’s name, with no beneficiary designation; cars or boats owned solely in the deceased person’s name; payments received in the deceased person’s name after their death; and, life insurance with deceased beneficiaries. Avoiding probate is one of the many reasons why titling assets and beneficiary designations is of crucial importance in an estate plan.
It’s important to understand that assets titled in the name of an existing trust, or with a trust as a beneficiary, do not go through probate. Assets that pass through a will, however, typically must go through probate.
What are the Disadvantages of Probate?
Although probate varies from state to state, and you should consult with a qualified St. Louis estate planning attorney in your area, here are some common complaints:
- It takes a long time. In some cases, it can take years for a probate court to finalize an estate, especially if it’s complicated or involves a contested will. Even for simple matters, it may take months, a year or longer, and it will definitely take longer than would be ideal.
- It is expensive. Although probate costs vary, expenses will typically include: the executor’s or personal representative’s fee, attorney costs and administrative expenses such as court costs and filing fees. The charges add up and increase the longer the probate process takes.
- It is a public proceeding. Because filings with a probate court are public, all the filings in the probate case may be a public record and available for public review.
All of these are good reasons to work with a qualified estate planning attorney who can help you and your loved ones avoid probate. Contact our St. Louis office at 314-303-3218 for if you’d like assistance with developing a comprehensive estate or elder law plan.
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