One thing that people often feel strongly about when they begin the estate planning process is that avoiding probate should be a high priority. It’s not always clear that their conviction about this is matched by an accurate understanding of what probate is, but they’ve heard from friends and family that probate is to be avoided at all costs. The reality, however, is that probate is not always a complicated and expensive process, and there are times when prioritizing its avoidance can create more problems than it solves.
So the first question is, what is probate? Probate is the court-supervised process to distribute assets to your heirs when you die. If you have assets titled to you alone at the time of your death, probate is going to be necessary in order to get those assets transferred to somebody else. Also, if you have minor children, their guardian will be chosen through probate. If your assets are simple, your heirs are known, and none of your heirs are likely to dispute the distribution, the process can be relatively quick and low cost. It can even be done informally, meaning that the estate’s personal representative handles most of the process without court oversight. Of course, if it isn’t clear who your heirs are, or if your heirs fight with each other over who gets what, the process can become expensive and drawn out.
I suspect that one reason people are so often determined to avoid probate is because they believe that the amount of taxes their estates will owe will be determined by how much of their estate goes through the probate process. They think, for instance, that they can avoid estate taxes by putting their assets into a trust. Although putting assets into a trust will circumvent probate, those assets will still be included in the formula for determining tax liability.
So why might you want to avoid probate? The primary reason is that it can take control out of your hands. The entire purpose of probate is to give a judge the opportunity to confirm that your assets have been correctly distributed. In other words, the judge is going to have the final say. If you leave a will behind, the judge will, or course, make every effort to ensure that your wishes are followed to the full extent legally allowed. The judge, however, might misinterpret what you wanted. Or perhaps someone will contest your will and the judge will side with that person. Moreover, if there are complications like these, the time that your assets are tied up in probate and the costs associated with it can quickly go up.
As with most things in the law, there is no simple, one-size-fits-all answer. The point to understand, however, is that you should go into the estate planning process with an open mind and not necessarily assume that avoiding probate should be your goal. Some strategies for avoiding probate can be costly and complicated, exactly what you’re trying to minimize by putting together a plan. A knowledgeable estate planning attorney will be able to help you determine whether avoiding probate should be a goal for you.