Probate: The Terrible, Horrible, No Good, Very Bad Side of Estate Planning

Wills have long been utilized as a classic estate-planning tool. But it's not enough to write up a will and call it a day. Once someone with a will passes away, a court needs to validate it via a process called probate. And that process could be more than what you've bargained for.

Why invite chaos into your life or that of your heirs? By avoiding probate, you can make life so much better after a loss.

What is probate?

Probate is the formal legal process that proves a will's validity and allows a deceased person's assets to be distributed. And the way that process works can vary from state to state.

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When a person with a will passes away, that will's executor is typically responsible for initiating the probate process by filing the will with a probate court. The executor will then commonly hire a probate attorney to oversee the probate process.

When there's no will, a person is said to have died intestate. In that situation, a probate court will typically attempt to distribute the deceased person's assets in accordance with state laws.

Probate courts determine what assets, beneficiaries, and creditors are associated with an estate. It's typically the responsibility of an executor to inform beneficiaries about the death of the deceased, and it's a requirement to put out a notice to creditors giving them an opportunity to make a claim against the estate if applicable. Probate will also pay any taxes owed by the estate.

According to the American Bar Association, some assets, including retirement plan proceeds and life insurance, will not be subject to probate as long as the owner named his or her beneficiaries.

The problem with probate

You’ll often hear that the process of probate can be both costly and time-consuming. Genny Bernstein, an estate planning and elder law attorney at Jones Foster, agrees that both points are spot-on.

Terrible: probate can take a long time

Bernstein explains that probate can easily take nine months to a year, but it can also take longer because “it's a series of court orders with certain time measurements you need to meet.”

Bernstein explains that almost every state has a creditor claim period that must be fulfilled before the process can proceed.

“In Florida, they need to publish 90 days' notice to creditors that they have the right to file a claim against the estate,” says Bernstein. “So during this 90-day process, you're just marshaling assets. ... You can't make distributions or do anything until you wait out that 90-day period.”

Horrible: real estate adds complexity and cost

That could prove problematic, though, if there's a home that's part of the estate that still needs to be maintained or whose mortgage needs to be paid. If you can't access funds from the estate, those costs could become very hard to manage.

Asher Rubinstein, a trusts and estate attorney at Gallet Dreyer & Berkey, also says it’s not uncommon for the probate process to extend beyond the one-year mark. The length of time largely depends on the size of the estate, its complexity, and whether the will in question is being contested.

But as he warns, “If a will goes through probate, what comes with it is all of the inefficiencies and delays of government."

Thankfully, he explains, most states have an expedited process for smaller estates. But each state gets to define what that monetary threshold looks like. And even those “in-between” estates — those that aren’t small but also aren’t vast — can take a long time, says Rubinstein. A one- to two-year turnaround for a mid-sized estate, for example, is not unheard of in his experience.

No good: probate can be expensive

Both Bernstein and Rubinstein say costs depend on the details of each situation. Rubinstein insists that "if the will is contested, it will cost more."

Very bad: probate can lead to scams

Another issue with probate is the lack of privacy that often accompanies it.

"When you admit a will into probate," Rubinstein explains, "you're disclosing to the public at large what is in the estate and who the beneficiaries are. That's risky."

Rubinstein says that while publicly disclosing assets could harm anyone, the wealthy are more likely to be targets.

"If you have someone with millions and you're making that public, you've given the public at large a road map to someone who's about to come into money," he cautions. "You've also created a forum for anyone to go and challenge that will."

Finally, says Rubinstein, there's the time value of money to consider. "If assets are tied up in a probate court, there's the opportunity cost of having them not invested in the market," he explains.

How to avoid probate

Although beneficiaries of an estate don't have to attend probate hearings themselves — that's typically handled by an attorney — the process can be stressful on top of being expensive and time-consuming. Thankfully, though, there are ways to avoid probate.

Rubinstein is a fan of the revocable living trust. "You still control those assets while you're alive," he says, "and the very same inheritance provisions you put into a will, you put into a trust instead."

Bernstein agrees that a living trust can be a suitable alternative to a will for many people. “However, not everybody fits that profile," she insists.

Bernstein explains that a will is typically less expensive to put in place than a trust. But Rubinstein warns that "down the road, the probate costs [with a will] could exceed the cost of the trust." For the most part, Rubinstein says, any conventional asset you can pass down with a will can also be passed down with a trust.

Rubinstein says there are also other strategies to keep assets out of probate. "You can open a payable on death account, which circumvents the probate process," he says. "And with real estate, you can have a joint tenancy."

How to avoid probate with a will

For those who feel that a will is the best way to pass down assets, there are a few ways to potentially mitigate issues during the probate process. Bernstein's suggestion? Have open conversations.

"You don't have to leave an estate equally, and you don't have to leave it to your bloodline," she says. "But if you're not going to do that, you should have a conversation with those people." That could help avoid a situation where a will is contested and probate is prolonged.

Rubinstein says he once had a client who wanted to leave everything to her middle child and disinherit the oldest and youngest child. To preempt a will challenge, he had this client videotape a will-signing affidavit and obtain affidavits from medical professionals stating that she was of sound mind.

Thankfully, it worked. But "these are the hoops you might have to jump through if you're using a will to pass on assets," Rubinstein says.

At the end of the day, it's important to recognize that a will isn't the only tool available to you for passing assets down.

"What happens a lot is that people don't realize they have options," says Bernstein, so she recommends talking to an estate planning attorney before putting together a will and leaving things at that.

Read More

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• Six Reasons to Disinherit Someone and How to Do It
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