Probate

What will probate cost your loved ones?

What Is Probate?

Many people think that passing on their wealth is a simple proposition: they write out their final wishes in a will, then, when they pass, someone ensures that their wishes are carried out. The reality of the probate process is quite different.

Probate is a legal process of proving a person’s will to be valid. The word is derived from the Latin verb “probatio” which means to prove. During the process, your Personal Representative, along with his or her attorney, will petition the court to prove your will is valid. If proven valid, then the court will supervise a series of legal processes. The exact process varies from state to state. Typically, the process includes preparing an inventory, notify creditors, publishing a notice in a newspaper, paying expenses and submitting a final accounting to court for review and approval.

In that final step of the process, the Personal Representative, along with his or her attorney, will file a Petition with the court requesting approval for final distribution of the remaining estate assets. Once approved by the court, these funds are then distributed to the named beneficiaries. Afterward, something commonly called a Declaration for Final Discharge is often filed with the court, bringing closure to the overall probate process. Generally, a probate estate is closed in 18-24 months.

Wills are subject to challenge. Any person with an interest (such as a disinherited child) in the distribution of the estate can challenge the validity of the will. The usual basis for these challenges are incapacity, undue influence and fraud (will is a fake). If a judge believes that the will was a product of any of these issues, it will be declared invalid and estate will be distributed according to the state’s intestacy laws. A substantial percentage of all wills challenged are declared invalid.

In a Word, Probate = Uncertainty

That uncertainty can lead to unnecessary exposure that could affect you and your family, both emotionally and financially.

A consideration would be to look into a Revocable Living Trust as an alternative.

What Are The Advantages & Disadvantages of Probate?

Advantages

  • May limit time for creditors to file claim
  • Creates a Public Forum to resolve any creditor disputes

Disadvantages

  • Cost – 3-8% of the estate value
  • Time delay – Typically 1-2 years
  • Public Record – Anyone can see what you have and who got what
  • Lack-of-Control – Will must be proven through probate
  • Hassle – Attorneys, Courts, Hearings, Laws, Frustration, etc

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