“Probate” is one of the dirtiest words associated with estate planning. Family, friends and people on TV talk about the need to “avoid probate” at all costs. You hear stories about probate proceedings that stretch on forever. But does probate deserve its bad rap?

First, what is probate and how does it work?

Probate is the court-supervised process of distributing a deceased person’s property to that person’s descendants or designated beneficiaries. This property is called thelast will and testament document beside a red book titled probate person’s “probate estate.”

The probate process includes “proving” a will, if there is one, to make sure it’s legitimate. If there is no will, the court determines the rightful heirs according to the state’s intestacy laws.

The probate court designates someone to be responsible for administering the estate, called an administrator or executor. If there is a will, this is usually the executor named in the will. The executor or administrator gathers and lists assets, pays outstanding debts and taxes, and then distributes the assets. A probate attorney is often retained to help the executor with this process.

Not all property is subject to probate. Some property passes directly to others. This includes properties held in joint tenancy (like a house co-owned by spouses), retirement accounts, and insurance policies or accounts made payable on death to a named beneficiary. Some states, including Kansas, allow up to a certain amount of assets to pass without having to go to probate court.

So, is probate always bad?

No. It’s a fairly straightforward process designed to manage, settle and lawfully distribute the deceased’s property. Probate is not always the headache it’s been made out to be.

So why the horror stories? Well, because when an estate is large, complex, and/or contentious, probate can indeed become a long and expensive ordeal.

What are some reasons for wanting to avoid probate?

Expense

There are court costs associated with probate, but they are not excessive. It’s the fees paid to the executor or administrator, as well as professionals like tax accountants and attorneys, that can add up in a drawn-out probate proceeding. There is much that needs to be done to settle an estate, including legal filings, filing and paying taxes, obtaining appraisals, finding and contacting potential heirs, settling debts, and so on. This work takes time, especially if the estate is complex and/or there is legal wrangling back and forth.

If you’re concerned that your estate could be difficult to settle, the best thing to do is to meet with an estate planning attorney. He or she can help you determine if your estate could save money in fees later on by investing in a more advanced estate planning solution (like a revocable trust) now.

Meetings & Court Proceedings

Even a straightforward probate case involves court proceedings and attorney meetings. This may be stressful for grieving family members no matter how smoothly things go.

Privacy

Probate is a public proceeding out of necessity—it gives creditors and potential beneficiaries the chance to weigh in. Information about the deceased person’s assets, liabilities and beneficiaries becomes public record. For some, this feels like airing family business in public.

Time

Even in the smoothest of cases, probate is not quick. There are some timelines that are set in stone by law. In Kansas, creditors have four months after a notice is published in the newspaper to file claims against the estate. Most estates may not be closed until at least six months after the date of death.

Still, when you consider that probate involves the fair distribution of the property a person accumulated over a lifetime, six months isn’t unreasonable. And several states, including Kansas, offer a simplified process for qualifying small estates that takes less time than that.

Delayed Access to Assets

Beneficiaries named in a will won’t receive the assets until the will is proved in probate court and any creditor claims are satisfied. This can mean a delay of weeks or months—or even longer if complications arise.

For this reason, many people set up pay-on-death or joint bank accounts to provide ready access to cash. A revocable trust is an estate planning option that people frequently use that addresses this concern. This is a good discussion to have with an estate planning attorney.

Loss of Control

In probate, a judge has the final say on whether or not your assets have been properly distributed. If you leave a valid will, a probate judge will make every effort to respect and carry out your wishes as long as they conform to the law. However, these decisions aren’t always clear cut. A judge might misinterpret something in your will, or side with a person who contests your will.

On the other hand, a probate judge is a neutral party who, unlike your surviving family members, can make decisions free of strong emotions and family alliances.

Are there any benefits to probate?

Yes.

Probate can help make sure the deceased’s wishes are carried out.

Without probate court or an estate plan that utilizes a revocable trust, there would be no legal mechanism to stop one family member from riding roughshod over the others or to resolve questions about the legality of a will. Probate court exists to make sure property is distributed according to the law and the deceased’s wishes.

Probate can help prevent problems with creditors.

One of the things people worry most about when handling a family member’s estate is how to settle with creditors. After all, you may not even know to whom the deceased person owed money.

Probate gives creditors an opportunity to make claims and places a time limit on how long they can do so. In Kansas, this limit is four months after a notice is published in a newspaper, informing creditors of their deadline to file a claim against the deceased’s estate.

Probate helps protect the assets of people who die without a will.

Dying without a will isn’t ideal, but probate at least provides a process to get property to the legal beneficiaries. Otherwise, property could end up unclaimed.

Probate provides transparency.

While to some people the public nature of probate feels like a violation of privacy, for others it’s a benefit. Having the settlement of the estate in the public record and reviewed by the court can place a check on the actions of the executor and others involved. There is a formal process for filing a complaint if someone disagrees with how things are handled.

Should I try to avoid probate?

This question has no one right answer. It all depends on your individual circumstances.

Some people, in their attempt to avoid probate at all costs, make their estate planning overly complicated and expensive even when probate would be routine. In other cases, estates get tied up in lengthy, bitter probate proceedings that might have been prevented by using a revocable trust.

Avoiding probate can be one goal of your estate planning, but it shouldn’t be your ONLY goal. This approach can create more problems than it solves.

Your wisest move is to consult an experienced estate planning attorney. He or she can help you understand your state’s probate laws and how they might affect your estate. You can have frank discussions about whether or not you expect difficulties from feuding family members or others. Working with an attorney, you can create an estate plan that makes life easier for both you and your heirs.

The general information contained in this article is not a substitute for legal advice. For assistance with legal issues related to probate law in Kansas, including estate planning, contact Fleeson Gooing today.