Haimo Law - Wills, Trusts, Probate, Business Planning and Asset Protection

The Only Benefit of Probate

The Only Benefit of Probate

By: Barry E. Haimo, Esq.
October 18, 2013

I’ve said it countless times before, you want to make an effort to avoid Probate. It’s time consuming, expensive, unpredictable and is not private. The worst part about it is the emotional toll it takes on family members and friends. It forces someone to be the responsible party. He or she must do more uncomfortably poke around in the deceased’s affairs. The responsible party is required by a fiduciary duty to identify all assets that the decedent owned in his or her name and all creditors that are known or reasonably discoverable. Notices must be filed to beneficiaries and creditors informing same of the existence of an estate and affording them an opportunity to file a claim. It’s an awfully convenient venue for contests and other disruptive claims. The assets will be inventoried and creditors will likely be paid out of the estate assets. Ultimately, the balance of the assets will be devised to the appropriate beneficiaries as determined by the deceased’s will or by the laws of intestacy of the state in which the decedent was a resident.

There are three (3) important points here:

1. Probate is an extremely uncomfortable process for loved ones to deal with even if they aren’t grieving. The timing and circumstances surrounding the death make this dreadful process emotionally taxing for all those involved, especially the responsible party. I often analogize it to pouring salt on a wound. If it can be avoided, it should be. Click here to find out how to do that.

2. Having a will does not avoid probate. Among other things, it merely serves as directions for burial, appointment of personal representatives and guardians over minor children, designates beneficiaries and provides for payment of expenses. It’s better to have a Last Will and Testament than not have one, but it is insufficient to avoid probate. This is commonly misunderstood so be aware.

3. Consistent with the title, there is just one benefit of probate proceedings: every single stage of proceedings requires a court order. It may, therefore, be advantageous to use laws and rules of procedure to your advance. That may be a good idea in limited circumstances, such as, for example, you are concerned about improper behavior by fiduciaries, will and trust contests and dealing with creditors claims. Opening up an estate generally requires notifying creditors, but it does limit their ability to file a claim to a relatively short window of time. If they do not timely file a claim, they lose their right to collect.