When people hear the word probate, negative feelings typically follow. It is well known that the probate process is quite challenging and many people try to avoid it with good reason. As with most misconceptions, the process is a heavily simplified version of the truth – it doesn’t take into account the more desirable outcomes that can occur under specific conditions.
By definition, the probate process is something that follows upon the death of an individual where a judge casts a verdict of whether or not a person’s will and everything it specifies is valid. The probate process requires an inventory to be run of all personal property, a debt/tax index, and a strict analysis of all financial accounts and portfolios. After this process is completed, the distribution of all remaining assets takes place and the will is fulfilled. Before considering the probate process, it is important to consider both the negatives and positives probate offers.
Advantages
- The probate process affords you the opportunity to exclude all creditors to the probate estate within a specified period of time, typically being 90 days. In comparison, if a person dies and their holdings are placed in a trust in an effort to thwart relatives from initiating the probate process, a two-year holding period is mandated for beneficiaries before they can attempt to claim any assets to pay outstanding balances and debts accumulated by the deceased.
- In some instances, probate may open up the possibility to contest the validity of a beneficiary’s claims in an unbiased legal setting. If your accusation of a beneficiary unjustifiably trying to reap benefits from the deceased holds any merit, the probate process could prevent you from having to pay any unnecessary debts out of the estate. Without the probate process in place, you would automatically be accepting the face value of these debts with no possibility of lessening the expense.
- Realistically, disagreements with how the estate should be handled will arise between the family members and friends of the deceased. One potential claim is that the testator wasn’t sound of mind when they created their will. This claim is one of the most common that circulates around the probate court circuit so most probate attorneys will have experience with it. Probate court can help settle disagreements over an estate in a way that leaves zero room for outstanding issues. This includes disputes between the heirs of an estate. These issues are highly sensitive and can affect relationships with loved ones, so allowing an unbias party to make the final decision can help keep things fair.
Disadvantages
- In its entirety, probate can be very time consuming and quite a lengthy process. In New York, the average probate case can take up to a year to officially wrap but depending on the size and value of the estate it can take several years to finalize. If your primary goal is to administer the assets to beneficiaries as fast as possible and move on with your life, then it is recommended to avoid the probate process.
- Like any legal proceeding, probate isn’t cheap. In states like New York, the probate process typically costs between 2%-5% but can be more depending on the value and complexity of the estate. For states that are worth more than $1 million, that numerical figure may decrease slightly, but regardless, the total amount will still be quite hefty.
- Considering the fact that probate is a legal process involving the state court system, there will be a record of any proceedings that’s easily accessible to the public. An estate’s details will become public knowledge and many people don’t want that kind of information floating around for all the world to know. Lack of privacy is a major drawback of the probate process.
It can be practically impossible to dictate who should and should not elect to use probate. A number of factors should be considered before deciding to embark down the road of probate. Every family situation is different and the first step should always be to consult with an estate planning and probate attorney to determine if this is the best option for you. Please contact one of our highly qualified attorneys to begin the process towards a brighter future!
