When people talk about drafting a will, avoiding probate is usually a major discussion point or even a major reason to write a will in the first place. Wills are crucial for everyone because, without them, court makes all the decisions about how your estate is distributed after you pass away. Even with a will, probate may not have a desirable outcome. Here is an overview of the process and the reasons it may not be ideal.
What is probate?
Probate is the process of resolving a will by giving ownership of property and assets to the people you had designated. Your will should also name an executor who will ensure that your will is handled properly. If you do not choose an executor, court will appoint a representative. They will follow the wishes in your will but you may prefer someone you know and trust who is more familiar with your desires.
What is the process?
First, all of your assets will be gathered. Before they can be distributed, your estate will be used to pay necessary taxes, fees (such as court fees) and any outstanding debts still owed. Any dividends or other sources of income may be added to your estate at this time.
Heirs and beneficiaries will have a chance to bring up disputes if they believe your will was drafted improperly or there is an issue. Your spouse automatically has rights to part of the inheritance, even if you did not name them in the will. Keep this in mind when planning the division of your assets.
After disputes are resolved, if there are any, your estate will be distributed.
Should I avoid probate?
There are a few major reasons that people avoid probate. For one, it can take a toll on the value of your estate. There are a lot of costs involved, including a number of fees and taxes. These are paid out of the estate itself.
It is also a long process. The length will depend on the type of probate, but it could take at least six months or more. This increases the fees that must be paid and it can be very stressful for your family, possibly hindering their ability to move on after the loss.
One final point to note is that your probate hearing becomes public record. Anyone could potentially look at how your estate was distributed and who owns what. This could be dangerous if you owned some very valuable assets.
Whether or not you want to avoid probate is your decision. An estate planning attorney can help you draft a will that meets your needs and ensures your wishes for the future.