The advantages and disadvantages of probate

by Roger Ellison, CFP

In a previous article, we discussed probate and described, in an oversimplified manner, that probate involves taking a will to the right court and having the court say, “Yes, this court has jurisdiction, the person has passed away, this is the last will of the person who passed away and this is the signature of the person who made the will.” The will has been “proved.” The court then appoints a representative of the person who passed away to carry out the provisions of the will and provides that representative with documents to show others that it is acting with authority in doing so.

Why, then, is there so much fear associated with probate? Why do so many people feel the need to do something – sometimes almost anything – to avoid probate? Why do some folks spend so much money now to avoid a smaller cost later? The answers are complex, and we’ll barely get started in this article, but let’s start with a simple discussion of advantages and then move to some of the disadvantages.

Advantages:

• The will is proved as discussed above.
• The executor’s actions are supervised.
• The probate court can serve as a forum to resolve issues.
• Assets and liabilities are inventoried and valued.
• Proof of legal title to real estate is established.
• A schedule for creditors to file claims prior to the distribution of assets to the estate beneficiaries.
• Gifts to charity receive a measure of public recognition.

Disadvantages:

• Certain details – the will, who gets what, and creditors claims – become public record.
• Property distribution may not be as fast as some heirs wish.
• Probate must be carried out according to the law.
• Probate will result in some court, attorney and/or executor costs.Some property may have to undergo probate in other states or countries.

As you can see, each of the advantages above has a very sensible intent, each one a part of assuring that what the deceased wanted to happen does in fact happen. To adequately address the disadvantages requires the person making the will or the executor facing the decision to probate or not probate the will to ask a simple question of each disadvantage – “So what?” If properly done, using good advice, the answer can be very helpful in appreciating or at least accepting the disadvantages of probate, or planning the steps to avoid the disadvantage.

Roger Ellison, Vice President of Planned Giving, at the West Texas Rehabilitation Center Foundation, is a Certified Financial Planner who provides gift and estate planning services on a no cost, no obligation basis. He may be reached at 325-223-6309 or roger@rogerellison.com