Probate, and Reasons to Avoid It

Probate, and Reasons to Avoid It

Probate is a court-supervised process used to validate your will and distribute your property. The process takes anywhere from six months to over two years to complete, and may require that lawyers or other professionals be hired. Even if you die without a will, if your estate's value exceeds a threshold amount, your estate must still pass through the probate system. In such cases, the court decides how to distribute your estate among your relatives.

Probate procedures often include the following steps, in the following order:

  1. Your will is filed with the local probate court (and becomes public record)
  2. Your executor inventories your property
  3. Your property is appraised
  4. All debts, including death taxes, are paid
  5. The court validates your will
  6. Court costs, attorneys' fees, and executors' fees are paid from your estate
  7. Then, and only then, the remainder of your estate is distributed to your loved ones

A living trust can help you avoid probate. If your assets are placed in a trust, you do not "own" them: the trustee of the trust does. You control the assets as if they were yours. When you die, only your property goes through probate. Since you do not "own" the trust property, it will not have to go through probate.

As discussed earlier, a trust in itself may not be enough: you may need a simple will to cover property not included in the trust. If all of your significant property is transferred into the living trust, it should be a relatively simple process to probate your pour-over will, if necessary.