What is probate and why would I want to avoid it?
Probate is the court process of proving a decedent's will and/or supervising the administration of a decedent's estate. This process takes place in the probate court, which is a special court designed for this function. State law governs the proceedings in the probate court, so they vary from state to state. Generally, however, probate proceedings are initiated when someone petitions the court. If there is a will, the petitioner must first prove that the will is valid. The court then watches over the executor while he or she settles the estate. If there is no valid will, the court appoints an administrator to settle the estate.
Why would you want to avoid probate? Because for some estates, it may be a time-consuming, costly, and public procedure.
The entire process can take as little as three months or as much as two years (or longer if there is litigation). During this time, assets cannot be distributed to your heirs. These assets may lose value during this time, or your family may suffer because they cannot reach the funds they need for their support.
Probate costs may consist of court costs, publication costs for legal notices, attorney fees, executor fees, bond premiums, and appraisal fees. The total cost for probating an estate can range from $250 to $10,000 (or more if there is litigation). Because probate costs are paid for by your estate, this money does not go to your heirs.
Finally, probate is a public process that makes your will a public document, open to anyone who wants to see it. Your private affairs are no longer private.
On the other hand, there are good reasons for an executor to use the probate system. Probate may make sense in the following situations:
When the will is confusing, especially if there is a question about who is to pay the taxes
When it can't be determined which will should be probated
When the estate is insolvent
When there is disagreement among the beneficiaries or they impede the process in some way
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