Most people have a general fear of probate which is often based on publicity or misunderstood information. The press and numerous articles explain the hazard of probate and the underlying expenses which could wipe out an estate. Are these real or imagined concerns? The answer is quite simple, it all depends. It depends on the size and complexity of the estate. It depends on instructions from the will of the decedent. It depends on the state of residence of the decedent. It depends on where the assets are located. It all depends, etc., etc., etc.
If you have experienced firsthand the complexities of probate you will have an opinion that makes the point that probate should be avoided.
A few points of concern about probate can be summarized:
• Probate is a public issue.
Anyone can access public records, which means your personal situation is open to anyone who wants to look. This puts your financial and personal life under public scrutiny.
• Probate can be an unnecessary waste of money.
Due to the complexity of the process for most people there is no choice but to put the handling of the estate into an attorney’s hands. The legal fees come off the top of the estate and can be more than expected. Often times the cost to probate an estate can be 5-10% of the total value of the estate. Like all complicated issues, it all depends on the circumstances.
• Attorneys love probate.
It is a cash generator for them because there is no worry about payment; it comes from the estate. Also, attorneys who specialize in probate have the process down to a system that can be mostly automated. Forms are pre-set and easy to designate to an assistant or office staff.
• States require court hearings:
Because of the nature of a decedent’s last will and testament, all states require an open court appearance. These appearances can delay probate due to schedules and disclosures.