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The benefits of avoiding probate court

May 31, 2017

 

One of the selling points of having an estate plan with a trust is that the handling of your affairs after you pass away can be done outside of probate court. But why is that a good thing?

 

(1)  Probate court is a public process. Your name won't be on display on a marquee at the courthouse, but virtually all court filings in your probate case will be accessible to the public. This includes your will, your death certificate, and the names and addresses of your beneficiaries and heirs-at-law. It will also include a detailed breakdown of your debts and assets. You might reasonably want this information to stay private, but in probate court, it won't be.

 

In contrast, administering a trust outside of probate court is a private process. Your beneficiaries and heirs-at-law will be privy to the process, but that's it (generally).

 

(2)  Probate court takes a long time. A probate case can take years to resolve due to the scheduling and noticing requirements of the court system. Some actions by the executor might also require the advance approval of the court, thereby adding further delays.

 

(3)  Probate court is expensive. It will cost well over $500 just to file a new probate case and comply with the minimum notice and service requirements. And that says nothing of hiring an attorney. Attorney fees in probate cases are governed by a statutory formula. For example, assume you are named as the executor of your father's will, and he dies with with an estate valued at $650,000. Your attorney will be entitled, by law, to a minimum fee of $16,000.  

 

(4)  Probate court adds uncertainty. Every contested probate case bears a degree of uncertainty to it. Some witnesses will come across better than others; some evidence will have an unexpectedly bigger impact than other evidence. What you believe in your heart of hearts to be fair and just might be different from what another family member believes.

 

Are there sometimes benefits to probate court? In limited circumstances, yes. In cases where beneficiaries and heirs-at-law have an intense distrust of one another, going through probate court can give the perception (but not necessarily the reality) that the end result will be fair and just because the process will be overseen and scrutinized by an impartial expert: the court.

 

 

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