Pros and Cons of Probate

For many people, one of the primary goals of estate planning, other than providing for their family, is to avoid probate. Estate planning attorneys encourage people to keep their assets out of probate so often, in fact, that it is common for people to assume that probate is something to be avoided at all costs. Is probate bad? It depends on the circumstances.

While it is often a good idea to avoid probate, the probate process exists for a reason. Under some circumstances, probate provides the oversight and structure to ensure that a deceased person’s wishes are honored and their beneficiaries protected. In other words, you shouldn’t automatically assume that probate avoidance is the goal. Let’s take a look at some of the pros and cons of probate.

Why is Probate Bad? (Or: Why is it Good to Avoid Probate?)

Probate is not inherently bad; it’s just that it may not be the ideal process for settling the estate of a deceased person (referred to in legal terms as the “decedent”). Some of the disadvantages of probate are:

Probate can be time-consuming.

Most of the time in Michigan, the probate process can take between six months and a year. However, in cases involving complex assets or complicated family dynamics, the process can take even longer. Distributing the decedent’s estate to heirs or beneficiaries happens at the end of the probate process, which means that a lengthy process forces people to wait for their inheritance.

For some people, having a loved one’s estate remain open for an extended period also extends the grief process. Having the estate settled sooner may help those people begin to find closure.

Probate can be costly.

Probate is a court process, which means there are court costs associated with the process, as well as the likelihood of attorney fees, executor fees, and so on. Probate expenses generally come from estate assets, rather than directly from the pockets of the heirs or the personal representative of the estate. Still, by reducing the size of the estate, probate may reduce the heirs’ ultimate inheritance. In general, the larger and more complex an estate is, the more costly it is to administer.

Probate can be confusing and burdensome.

The personal representative of the estate is appointed by the probate court, and is often a close family member of the deceased. Many personal representatives have never served in this role before, and the duties and legal requirements can be confusing, even overwhelming. That is especially true for a personal representative with other work and family obligations. An experienced probate attorney can help significantly, but many people would prefer to simply avoid the work that goes with the probate process.

Probate is public.

Probate matters are a matter of public record, which means that people you didn’t intend to know your business can gain access to your will and information about the administration of your estate. People with larger estates usually prefer to keep their estate business private.

Most people who avoid probate do so for one of the reasons above. After reading the list of probate cons above, you may wonder why anyone would want their estate to go through probate. Read on to find out.

Why Probate May Be a Good Idea

Going through probate isn’t necessary for every estate. That said, there are reasons that you may want to consider the probate process for your estate. They include:

Probate offers structure.

One of the primary advantages of probate is that the process offers structure, and a framework for settling the estate. Having this framework for the process helps to ensure that estate business is managed properly.

The structure of the court process can be especially helpful if there might be disputes over the estate o the validity of the will—such as between estranged siblings or the children of a previous marriage and a stepparent.

Probate offers certainty.

One of the duties of a personal representative is to settle the legitimate debts of an estate. In probate, this process involves giving notice to creditors of the estate—directly, in the case of known creditors, and by publication, in the case of unknown creditors.

As long as notice is properly provided, it doesn’t matter if the creditor actually sees it; they have four months from the receipt of notice (or first publication) to make a claim against the estate. If they fail to do so, the claim is forever barred—meaning that heirs won’t have to worry about creditors appearing later claiming a right to their inheritance.

In addition, if a purported creditor does make a claim against the estate and there is a dispute regarding its validity, the probate process offers a venue for determining whether or not the claim is valid.

Probate can offer accountability and oversight.

Most personal representatives undertake their duties with diligence and do their very best to administer the estate and honor the decedent’s wishes. But in some cases, there may be concern about whether a personal representative is mismanaging the estate—either intentionally or inadvertently. Court oversight can help heirs and beneficiaries feel that there is accountability in the probate process, and provide a mechanism to remove a personal representative who has committed misconduct.

If avoiding probate is important to you, an experienced estate planning and probate attorney can help you do so—but don’t overlook the benefits that the probate process can provide. To learn more about the pros and cons of probate, and options for avoiding probate, contact Suzanne R. Fanning PLLC to schedule a consultation.