What Probate Actually Means and How to Avoid It

The death of a spouse, sibling or parent is a difficult and life-changing event. Dealing with the loss of a loved one in itself is a traumatic experience, but the legal issues that can arise often add to the pain and suffering when there is not a written will in place. Tying up the affairs of a loved one who has passed can become a nightmarish experience, especially when there are dissenting relatives who disagree on how the estate should be handled. When the estate goes into probate, the process can be overwhelming. It’s important to understand precisely what probate is, what it means and how it can be avoided.

Lessening the emotional impact of probate

When an estate enters into probate, trying to understand the process can be emotionally draining at a time when you’re already deeply impacted. The terms associated with the process are hard to understand if you don’t have a legal background. At first glance, it may seem like a complicated process with frightening consequences, but it’s not as complicated as it may appear. Preparing for it in advance can help lessen the strain for your family.

Probate defined

Probate is a legal process that is followed by a court to tie up your financial and legal affairs after you die. It involves distributing your estate. An administrator appointed by the court makes the decision about how the estate and its assets will be distributed to your survivors. You can’t assume that everything will be distributed equally. This is especially true if you have not written a will. Issues with probate arise for people from all financial classes.

Problems encountered with probate

When an estate enters into probate there are five major issues that can and often do arise. Not all families squabble about the division of the estate, but in most cases, there are at least one or more parties that will have a serious disagreement over what goes to whom.

1. It may become a time-consuming process

Surviving heirs may encounter problems if there are time sensitive items that need to be addressed such as payment of medical bills, college and other expenses that come up immediately after the death. Issues can arise when the inheritance is needed to pay for these items. Things like mortgage and insurance payments or other home maintenance expenses can become an excessive burden if the probate process takes a long time to complete. The average duration of the probate process is between nine months up to two years. Maintenance expenses can exhaust the value of the estate before the process is settled.

2. The cost of probate

It costs money to go through the court system for any legal process. If there is a valid will in place, there will be court costs. If family members challenge the will, it will cost more. On average, court costs will run anywhere between six to ten percent of the value of the estate. This calculation is made prior to the payment of other estate-related expenses.

3. Publicly accessible

When an estate goes into probate, the information becomes public record. Anyone who wishes to find out the value of the estate and what was left to each heir can do so legally. It takes away financial privacy for the heirs.

4. Family contentions

After a family member passes away, the good and bad in people can come out. Many families have been split by disagreements over the distribution of assets as well as personal items. This happens whether there is a valid will in place or not, especially when the will is contested. These family disagreements can reach the level of taking legal action against one another and this also becomes a matter of public record.

5. Who gets the pets?

By definition of the law, pets are considered to be property in the same sense that furniture or other personal belongings of the deceased are. Some people write a special section in their wills about who the pets will go to and some set-aside trust funds for the care of their pets along with stipulations for care.

Avoiding probate

Probate can be a messy and expensive legal process. The best way to deal with the situation is to avoid it by being proactive. Those who know how, can avoid it altogether. Some assets can totally bypass the probate process including IRAs, personal annuities, pension plans, life insurance, smaller estates, and some states allow affidavits of smaller estates which makes the settlement process go much faster, easier and less costly. You can find out what is required by your State by going online, by calling a lawyer or by checking with your local probate court. The best thing that you can do to help your family avoid going through the probate process is to contact a lawyer and create a will.


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