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Probate isn’t always bad, but most of the time, it is a waste of money and time.  Probate is a court supervised legal process whereby the court makes sure your debts are paid and any remaining money or assets distributed to those people entitled to them.  What this means is that if you don’t plan properly before you die, your family will be stuck paying a lot of attorneys fees, court costs and wasting a lot of time before receiving your property.  In some cases, because you didn’t plan well, the people you thought would get your things, don’t.

Here’s how the process works.  First, after you die, if you haven’t put a proper plan in place, a family member or friend will need to contact an attorney to begin a probate proceeding.  Why? Because as a general rule you can’t transfer title to your house, car, bank account, etc., without a court order.  Next, once the court proceeding is started, creditors will be notified that they must file a claim within a certain amount of time (usually 60 -90 days) or forever be barred from being paid.  If there are enough liquid assets to pay the creditors, then the court will approve payment.  However, if there aren’t enough liquid assets then property may need to be sold to satisfy the creditors.  Only after all creditors have been paid and any taxes paid will the court order that your property be distributed.  But, who gets your property.  If you write a Will and tell the court who gets what, that’s great.  But, what if you don’t?  Then state law will decide.  May be you don’t want your kids to have to split your stuff with your new spouse.  It could happen.

Probate takes time.  In my experience, even the simplest probates take 9-12 months.  Attorneys make a lot of money doing probate.  Some are paid hourly; others take a percentage of the value of the estate.  The more assets subject to probate, the more money goes to your creditors, leaving your loved ones with less.  And, the emotional toll can be far greater.  Probate often leads to arguments within a family, sometimes irreparable damage to a family occurs.  Do your family a favor.  Create a proper estate plan.  Prepare now or leave your loved ones to deal with a very time-comsuming, emotional and expensive mess.

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