Probate and Why You Want to Avoid It

by Alejandro U. Legal Marketer

Many people aren’t sure what probate actually is, except that it involves lawyers and courts in transferring property after one’s death. One thing they do know is they want to avoid it. That’s a sound instinct. In most instances probate is a costly and time-consuming business, providing no benefits except to attorneys.

 

What Is Probate?

 

Probate is the legal process that includes:

 

• filing the deceased person’s will with a local court (depending on the state, the court may be called the “probate,” “surrogate,” or “chancery” court)

• identifying and inventorying the deceased person’s property

• having that property appraised

• paying off debts, including estate tax—if any

• having the will “proved” valid to the court (this is almost always a routine matter; indeed, it’s so routine that it’s done without a formal hearing in many states, unless there is a contest, which is extremely rare), and

• eventually, distributing what’s left as the will directs.

 

If the deceased person didn’t leave a will, or if the will isn’t valid and the deceased didn’t leave the property in any other way, such as through a living  trust or joint tenancy, the estate must still go through probate. The property is distributed to immediate family members as state law (called “intestate succession” law) dictates. Aside from that, the cost for creating a living trust is nothing compare to the cost of the probate process.

 

People who defend the probate system (mostly lawyers, which is surely no surprise) assert that probate prevents fraud in transferring a deceased person’s property.

In addition, they claim it protects inheritors by promptly resolving claims creditors have against a deceased person’s property. In truth, however, most property is transferred within a close circle of family and friends, and very few estates face creditors’ claims. Whatever bills the deceased had—often not many—are readily paid out of the property left. (According to a study by the American Association of Retired People (AARP), the great majority of creditors’ claims are filed by the funeral industry, which has learned to use probate as a collection device.) In short, most people have no need of probate’s so called benefits. The system usually amounts to a lot of time-wasting and expensive mumbo jumbo of use to no one but the lawyers involved.

 

The actual probate functions are essentially clerical and administrative. In the vast majority of probate cases, there’s no conflict, no contesting parties, none of the normal reasons for court proceedings. Likewise, probate doesn’t

usually call for legal research, drafting, or lawyers’ adversarial skills. Instead, in the normal, uneventful probate proceeding, the family or other inheritors of the dead person provide a copy of the deceased person’s will and other needed financial information. The attorney’s secretary then fills in a small mound of forms and keeps track of filing deadlines and other procedural technicalities. In some states, the attorney makes a couple of routine court appearances; in others, the whole procedure is normally handled by mail.

 

There is so much money in the probate business that some lawyers hire probate form preparation services to do all the real work. In most instances, the existence

of these freelance paralegal services is not disclosed to clients, who assume that lawyers’ offices at least do the paperwork they are paid so well for.

 

A typical probate takes up to a year or more, often much more. I once worked in a law office that was profitably entering its seventh year of handling a probate estate—and a very wealthy estate it was. By contrast, property transfers by other legal means, such as a living trust, can usually be completed in a matter of weeks. For information about specific state requirements and form needed to create a Revocable Living Trust visit:

California

Florida

Colorado

Arizona

Texas

Nevada

 

Probate usually requires both an executor and someone familiar with probate procedures, normally a probate attorney. The executor, appointed in the will (usually a spouse, relative, or friend of the deceased), is responsible for making sure that the will is followed. The executor hires a probate lawyer to do the paperwork. After that, the executor does little more than sign where the lawyer directs, while wondering why the whole business is taking so long.

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Created on Jul 1st 2020 01:09. Viewed 228 times.

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