Pros and cons of probate

Most people do not want to deal with probate because of the time and expense it may add to enforcing your last will, but sometimes the probate process can be beneficial.

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by Michelle Kaminsky, Esq.
updated May 11, 2023 ·  3min read

In ideal circumstances, the probate process runs smoothly and quickly, but in the worst-case scenario, it can turn into a drawn-out legal nightmare for loved ones. You may have heard that avoiding probate is always the way to go, but believe it or not, there may actually be some advantages to going through the probate process.

What is probate?

Probate is the court-supervised process of distributing a deceased person’s assets after his death.

How does probate work?

Whether or not a person has a last will and testament in place at the time of death, any assets that do not pass directly to beneficiaries must go through the probate process.

The process, in theory, is quite simple: To probate a will or estate without a will, the probate court assigns a representative, who will gather and list the deceased’s assets, pay any outstanding debts, bills, taxes, and fees, and then distribute assets to the intended beneficiaries according to probate law.

A probate attorney is often retained to help guide the representative (called an executor or administrator) through the probate process.

Probate cons: Why avoid probate?

Even if you have a relatively simple estate, probate can eat up time and resources that not only delay your loved ones’ receipt of your assets but can also cause great stress in the months or even years it can take to settle an estate.

After a death in the family, the last thing anyone wants to do is sit through meetings with attorneys and court proceedings for months on end. And remember, all of this happens publicly as the probate process is a public proceeding.

Moreover, all of that legal wrangling costs money, which cuts into the value of probate property, even up to 10%—which means your loved ones won’t ever receive it.

Probate pros: What’s so bad about probate anyway?

The probate process actually works to protect small estates in some instances, especially for those who have died intestate, which means without a last will. In those situations, there is at least a predictable, step-by-step process in place to make sure that the correct beneficiaries inherit a decedent’s property, even if it may not be timely.

Also, if you don’t have the financial resources at the moment to undertake estate planning, having your estate bear the costs of the probate process after your death may be preferable for your circumstances.

Another potential benefit to the probate process is for those who want the distribution of their estate to be public knowledge. Wills are public records, so when they are carried out after a person’s death, the information becomes public as well.

Probate in your state

Some states, such as Florida, have special probate processes set up to handle small estates. It is possible that these probate processes may be faster, cheaper, and more effective than more complex estate plans, such as living trusts. You should learn more about your state's probate process and see if you may qualify for a special probate process.

Final thoughts on probate

Just as with any legal decisions, what makes sense for one person may not be in the best interests of another. Accordingly, while the probate process may be fine for some estates, others may want to avoid probate at all costs.

A little planning on your part now could make a big difference to your loved ones in the future, so why not start exploring your estate planning options today?

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Michelle Kaminsky, Esq.

About the Author

Michelle Kaminsky, Esq.

Freelance writer and editor Michelle Kaminsky, Esq. has been working with LegalZoom since 2004. She earned a Juris Docto… Read more

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.