You’ve probably heard this before, “You should definitely avoid probate.” Ever wondered what is probate and what makes it so bad you should avoid it at all costs? We’ll tell you why, but first...
What is probate?
Probate is the legal process by which the estate of a deceased person is distributed according to his/her will or according to law. The process is usually done in the appropriate county court.
Where no will exists, probate will be carried out according to law. The process usually involves collecting all the deceased’s assets, paying off all realizable debts and accrued taxes, and distributing the remaining estate according to the applicable laws.
Why You Should Avoid Probate
There are a number of reasons why you should consider avoiding probate:
#1 - Probate is expensive
Probate is significantly costly. Because it is a court process involving the filing of numerous documents, court fees and expenses can run into the thousands. In addition, you will have to hire a probate attorney to argue your case. The attorney’s fees will likely be apportioned from the deceased’s estate. Typical attorney fees for a $500,000 estate can be well over $12,000.
An executor may also be appointed to execute the deceased’s will. The executor’s fees are payable from the deceased’s estate. Where appraisals are necessary, which is often the case with real property costs may be as high as 0.1% of the value of the estate.
#2 - Probate takes too long
When your loved one dies, you want his/her estate distributed effectively and efficiently to allow you time to mourn in peace. The last thing you want is a court process that drags on for months or years. Sadly, this is exactly what probate is.
Because court processes involve a lot of paperwork, probate can take between six months and two years. If the estate is complicated or if some heirs are contesting the will, the process can take far longer.
During this period, the deceased’s estate cannot be sold or dealt with outside the court’s knowledge. This will significantly frustrate the family of a deceased who was the sole breadwinner.
#3 - Publicity
All documents filed in court are available for public record. Therefore, all documents revealing a deceased’s assets, debts and unpaid taxes filed in court will be available to anyone with access to the public record.
In addition, documents disclosing how a deceased’s estate was finally distributed will be on record. Therefore, each beneficiary’s share of the net assets as well as any conditions set before distribution are made public.
#4 - The court determines distribution of estate
A probate judge you have never met, who does not know your family and who does not know where you have come from will be in charge of distributing the estate of your deceased loved one.
The judge may opt to distribute the assets apportioning a significant amount to someone who looks good on the outside, even though he/she may not be favored by the family. In addition, certain people who were close to the deceased may be left out of the distribution simply because court documents can never quantify the depth of brotherly love.
This loss of control is scary and quite frankly, unnecessary.
There are numerous ways to avoid probate in California. These include:
- Gifting property before death
- Establishing right of survivorship
- Creating a living trust
If you are looking to avoid the headaches of probate, Horizon Elder Law & Estate Planning attorneys can help you understand your options and to determine which ones will work best for you and your family. Call today at 925-224-1185 to schedule a consultation.