Do you know the top reasons to avoid probate?

If you have heard anything about probate, you were probably told to avoid it at all costs. However, you may not know what it is, what the drawbacks are and most importantly, how best to avoid it.

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by Ann MacDonald
updated March 27, 2023 ·  2min read

If you have heard any advice about probate, you were probably told to avoid it at all costs. However, what you may not know is what exact it is, what the drawbacks are and most importantly, how you can avoid it.

What is probate?

Probate is the legal process by which the assets of someone who dies are distributed. When a person dies, he or she usually leaves behind assets (money, property or other items of value) and debts of some kind. In probate, the court system takes stock of all of these assets, pays the debts and distributes anything that remains to person's heirs.

If the deceased left a will, the court tries to honor the requests indicated. However, if there is no will, the assets are distributed as the court deems appropriate. If you want to make sure your masseuse gets a bigger inheritance than your nephew, it is important to leave a will.

Why should I try to avoid it?

Probate is slow

One reason to avoid probate is that it can be time consuming. Since probate is a process controlled by the courts, it usually proceeds very slowly; while it can theoretically be completed in six months, in most instances probate takes from one to three years. It can take even longer if the estate is a complicated one or if any of the heirs are contesting the will. Three years can be a very long time to wait when you are waiting to get your hands on Uncle Milt's Ferrari.

Probate can be costly

While the costs of probate vary by state, probate can be very expensive. The court takes a portion of the gross estate (the amount left by the deceased even before debts are paid) in probate fees. This fee can be as substantial as 10%. The court may use money from the estate to assign lawyers to guard minor heirs' interests or to conduct other parts of the process. Generally, if probate is avoided, the heirs can spend the deceased's money instead of the state.

Probate is a public process

Since probate is handled by the court system, all of the documents and information used in the probate process become part of the public record. Not only are the debts and the assets of the estate made public, so too are the distributions made through the probate. This means that anyone who cares to look up the correct public record can discover that you now have your great aunt's gold coins, Renoir painting, and invaluable marble reproduction of Elvis' nose. This sort of publicity often makes people targets for burglars or scammers.

So, what do I do?

The most straightforward way to avoid probate is simply to create a living trust. A living trust helps ensure your assets pass to your heirs privately, with the least possible expense.

And, what most people don't realize is that a living trust is merely an alternative to a will. Unlike a will, which merely distributes your assets upon death, a living trust places your assets and property "in trust" which are then managed by a trustee for the benefit of your beneficiaries. The biggest benefit is that a trust allows you to avoid probate entirely because the property and assets are already distributed to the trust.

So, what are you waiting for, get started on your living trust today.

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About the Author

Ann MacDonald

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This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of the author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.