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Why Avoid Probate?

UPDATED: June 19, 2018

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Probate is the legal process estates pass through before assets can be transferred to family members and charities. Whether someone dies with or without a will, their estate may pass through probate. While probate is the most common method, it is not mandatory for everyone; some prefer to avoid probate for various reasons. 


Probate is a court proceeding, which means that the family must pay a lawyer to represent the estate and ensure assets are properly distributed. Additionally, the family must pay all court-related fees such as the court transcriptionist, publication fees, and courtroom use fees. Most families remove these fees from the overall estate’s wealth, resulting in a smaller inheritance for everyone.


All court proceedings are public record and probate proceedings are no exception. Even before the proceedings begin, the family must publish a public notification that the person has died and their estate is in probate. During the hearing, anyone from the public can come and listen in. Additionally, creditors or those with less honest intentions often seek out heirs for solicitation purposes.


Probate proceedings rarely bring out the best in family members. If a certain family member was disinherited or given less than they consider fair, they could contest the will’s legitimacy (click here for more information on will challenges). When this happens, a probate proceeding may drag out for years, costing the family even more legal fees. Additionally, assets are frozen during the probate proceeding, which can cause financial difficulties for widows, especially young widows who require the estate’s funds to run their household. While the court traditionally grants that person an allowance, anything above the allowance must be requested through futher court filings.


Debt affects more than just the person who passed away. Any creditors, including prior spouses, can make claims against the estate in an attempt to get a piece of the inheritance. Additionally, debtors can attach liens against inheritors if the inheritors owe any funds. So, if one of the deceased person’s children was a spendthrift, they could lose their entire inheritance to their creditors before ever laying a hand on it. Simply put, probate is a public record, and anyone in the public sector has access to the details.


The final reason some people prefer to avoid probate is the unpredictability of the process. When someone writes a will, they expect it to be completely honored, but the reality is that judges change wills all the time. Most of the time the changes are meant to further clarify the person’s intent or to eliminate provisions that may not still be applicable. However, there are times when entire sections of a will are removed because the court or family does not agree with the provision. This is especially common where a person may have given exceedingly large amounts of their estate to charities instead of family or if a certain family member was intentionally excluded from the will, but not specifically mentioned.

The simple fact is that in most instances, a will suffices to ensure the drafter’s intent is followed and that the process of transferring wealth goes smoothly. However, there are times when unexpected contests arise and the expenses incurred by remaining family increase greatly.

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