What is Probate?

The Word probate means to prove. It is a general name or term used to include all matters over which a probate court has jurisdiction. This includes the traditional proof of wills, the disposition of estates the appointment of guardians and conservators, changing a person’s name, and other matters. Probate is a problem every family faces at one point or another and it consumes a huge amount of money. The sad part is that most of the probate system would be unnecessary if people would just do a little planning.

An American family will be exposed to the probate court when (1) a family member dies, (2) a family member becomes incompetent, or (3) a minor child inherits property.

A Last Will and Testament Isn’t Going to Avoid Probate

Since the estate tax limits have climbed, the trends to get everybody into a revocable living trust have slowed.  The revocable living trust has also lost popularity, because a lot of lawyers are arguing that all you need is a last will and testament.

The lawyers say, “avoiding probate isn’t a big deal.”  In many states new laws have been passed that make it a lot easier to probate an estate.  Unfortunately, a lot of lawyers haven’t gotten the memo.

The death of a family member is a time of severe grief in a family, and it is easy to take advantage of the family at that moment.  A lot of lawyers tend to take advantage of their grieving clients at the time they are most vulnerable.

(It’s really sad that 95% of the lawyers give the other 5% of us such a bad reputation.)

Avoid Probate and Save Money

Probate is expensive.  It is basically money that the family didn’t have to spend, but mom or dad thought they would be smart and save a lot of money by just getting a free example of a will off the Internet.  They were penny wise and pound foolish.

The example of a will they got may have actually been a great last will and testament, but no matter how good the example of a will is, it will not avoid probate.  Probate is the court process that gives the will its “power.”

Probate is expensive for you.  Probate is big business for lawyers.  Go to any county courthouse in the nation, and there will be an entire section of the courthouse set aside for probate.   The probate courts are a major part of the judicial system in the United States.

The fact that probate is the only part of the judicial system that has its own court system in every county in the United States should tell you something.  It takes a lot of money to run those courts.  Probate isn’t cheap, so let’s just avoid probate all together.

Avoid Probate to Save Time and Frustration

The frustration of probate is huge.  Some years ago in our area a family literally killed each other over the probate process.  It drove them insane.  This isn’t some story off the news.  I grew up three houses away form them.  I knew them all for 30 years.

There really aren’t any published statistics on the length of time it takes to probate an estate, but it is somewhere on the average of about a year or a year and a half.  It will take the person named as the executor or executrix (personal representative) hundreds of hours to clean up the estate.

The other family members will become frustrated, because they want their share of the estate.  Some kids can’t wait to spend their inheritance.  Stupid, but true.  They will start to harass the personal representative.  The longer it goes, the more tension there is in the family.

Avoiding Probate Isn’t Always the Best Course

There are actually reasons you want to take Dad’s estate through a probate process, but most families should just avoid probate any way they can.  If you do want to probate Dad’s estate, note that you don’t have to probate all of the assets.  Use a rifle approach, not a shotgun approach.

Probate is a legal tool.  Just like any tool, you had better know how to use it or it will hurt you. I have developed materials to lead you step by step through the whole estate planning process, but if you’re only looking to learn about avoiding probate. If you decide you want a complete estate planning guide, you can request a copy of my book, Protecting Your Financial Future.

The biggest problem is you can’t blindly trust your lawyer to do everything for you.  If you walk in off the street to get a “last will and testament” and say, “Hi Mr. Lawyer.  Here I am.  Set me up,” your lawyer is going to do exactly what you just asked him to do.  He will set you up.  Avoid the “set up” and avoid probate, just know what you’re doing, and it’s easy.

Lee R. Phillips

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