The term “probate” refers to the legal procedures that govern the distribution of a deceased person’s property and assets upon their death. While probate laws often vary from state to state, the probate process typically involves analyzing the validity of a will, ensuring that all remaining taxes and debts are paid off, and distributing assets in accordance with a will or state laws.
Some of the major benefits of avoiding probate include:
- Less Expenses: The probate process can be fairly expensive. There are usually various fees involved, such as court fees and accounting fees. Oftentimes, a percentage of the estate is used to pay attorney fees or other miscellaneous fees (e.g., shipping personal property to beneficiaries).
- Time-Saving: The probate process can take quite some time. Directly-tied to expenses, generally the longer it takes, the more expensive it becomes. Probate can even be prolonged if there is a dispute involved. This might mean that a person will not see their inheritance for a while.
- Immediate Access: Beneficiaries who stand to gain from inheritance or gifts will have immediate access if they can avoid probate. Again, relating to expenses, they also will not risk losing their inheritance or gifts to estate and/or attorney fees.
- Privacy: Probate hearings are matters of public record, meaning anyone has access to them. Avoiding probate ensures that estate matters will be handled in private.
Additionally, many of the legal mechanisms used to avoid probate allow for flexibility. For example, amending the terms of a living trust when the creator is still alive is relatively simple. It also allows the settlor of the trust to create narrowly tailored instructions.
On the other hand, it is often very difficult to contest a will once the testator is deceased. Even if they are alive, the testator will still need to follow certain legal formalities in order to have the will amended.
How Long Does Probate Take?
Probate can last anywhere from several months to years. This is because the time it takes to complete probate depends on a number of factors, such as the value of the estate, whether there is a valid will, if there is a dispute, and what is already scheduled on the probate court’s docket.
Each of these individual factors, among many others, will contribute to the length of time that it takes. For example, when a person dies intestate (e.g., without a will), then the court will simply distribute the estate assets according to the state’s intestate succession laws.
In contrast, if the decedent had a will, then the court will first need to confirm its validity, appoint an executor, and identify beneficiaries. This is only stage one of the process and yet it can still take anywhere from one to four months to complete.
Additionally, it should be noted that persons contesting a will need to do so before the statute of limitations has passed. The amount of time allotted before the statute of limitations has lapsed will depend on the laws of each state. While it is possible to contest a will after the probate process has ended, it is extremely difficult to obtain a successful outcome. Thus, once the person notices an issue, they should report it as soon as possible.
How Much Does Probate Cost?
In general, the ballpark value that is typically given as the answer to how much probate costs is usually anywhere from 2% to 7% of a person’s estate. However, the cost of probate can vary in accordance with a number of factors, such as the size of an estate, whether a dispute arises (e.g., this can prolong the process), and how an attorney bills a client.
The cost can also depend on the laws of a particular jurisdiction. For example, in Arizona, the probate process is not required if the value of an estate’s personal property is less than $50,000, or if the value of its real property is $75,000 or lower.
As another example, North Carolina determines court fees using the value of an estate. For instance, if an estate in North Carolina has a value of over $10,000, the fee would amount to $40.00, plus an additional $4.00 per the estate’s personal property amounting to $1,000.
Additionally, many states use the minimum percentage of the total estate to calculate various fees (e.g., court costs, executor fees, accounting fees, etc.). An attorney may even request extraneous fees if they provide more services than what is necessary for a basic probate proceeding.
Thus, as is evident from the above discussion, the cost of probate is generally unique to the individual, their situation, and the specific laws of their state.
What Can You Do to Avoid Probate?
As previously mentioned, most people would prefer to avoid the probate process entirely since it can be expensive and time-consuming. While there are several legal tools available to work around the issue of probate, many people tend to put off their obligations when it concerns uncomfortable topics like death. This often results in a lack of estate planning.
Consequently, issues that could have been avoided, such as will challenges and disputes during probate, then arise after the person’s death where it becomes much more difficult to resolve these problems. Alternatively, it can also lead to an outcome where the deceased’s family receives nothing, and the state gets to keep all of their property and assets instead.
Thus, the initial step to avoiding probate may start with having a conversation about post death estate plans with family members and loved ones because these are the people who will be around to ensure that the deceased’s intents and desires are properly carried out.
Some examples of options to discuss that can also help a person to avoid probate include:
- Living Trusts;
- AB Trusts;
- Life Insurance Policies;
- Transfer on Death Deeds;
- Joint Tenancies with a Right of Survivorship; and
- Payable Upon Death Bank Accounts.
It should be noted that the above list contains some examples that are not recognized by every state and may not be suited for a particular individual. For instance, an AB trust can only be created by persons who are married.
Therefore, in addition to having a conversation with family members, a person may also want to consult a probate lawyer for further information on these matters.
Do I Need a Lawyer’s Help to Avoid Probate?
Generally speaking, matters relating to property and/or assets can sometimes pose difficult challenges. These challenges arise in part due to the various fields of law that need to be assessed when handling such issues, as well as the laws of a particular jurisdiction.
Despite the legal complexities, however, not every probate issue will necessarily require the help of a lawyer. If your issue involves obtaining property or assets from a living trust or if they can be transferred immediately because of a life insurance policy, then you may not need to retain a probate lawyer.
In contrast, if your probate issues involve attending probate court over a disputed matter or if you need to create a living trust, then it may be in your best interest to contact a local probate lawyer.
A lawyer who has probate experience will be able to guide you through the proper legal process for creating a living trust; this in turn, can help you to avoid probate. They will also be knowledgeable about the applicable laws in your area and can discuss other estate planning options.
Additionally, in the event of a dispute or will challenge, your lawyer will be able to represent you in court if necessary.