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The Truth About Probate: It’s Only as Bad as You Make It
Take a tour of what the internet has to say about probate and you’ll come away believing there is no worse place to end up. After all, bountiful articles warn about accumulating fees, administrative hassle, and the potential for family conflict; and while these are valid concerns, they are not inevitabilities in the probate process. What is more, there are times when probate is a genuinely good option or, at least, the best option available. In order to explain how, it is important to first address a few basics.
What Happens During Probate?
In cases where there is a last will, the probate court supervises the process of authenticating it and empowering the named executor to act on behalf of the estate of the deceased person. This involves locating and determining the value of a person’s assets, paying their final bills and taxes, and ensuring belongings are properly distributed to beneficiaries.
Probate also intervenes in instances where a person dies without a will or dies “intestate.” In both this instance as well as when a will is present, individual state laws determine how the process unfolds. In general, such laws change little from state to state and yet small but significant differences exist and document format varies which is why it is important to update your plan after any interstate move.
When Is Probate A Good Option?
It is important to understand that even the best drafted last will cannot pass title to the named beneficiaries until it goes through the probate process. Likewise, a named executor has basically no authority to act on behalf of the estate with respect to distribution to beneficiaries until the executor is appointed by the court and qualifies.
Therefore, despite its bad reputation, there are circumstances where navigating probate might be better than working to avoid it. This is especially true of smaller, less complex estates for which a well-designed will has been executed. In such cases, an experienced attorney can guide you through probate in six months or less.
In Texas, a will may also be probated through Muniment of Title: a special process allowing the direct transfer of assets to beneficiaries without the need for any administration as long as certain conditions are satisfied. In instances where an estate has no unsecured debts and property and cash compose the majority of assets, this is an advantageous option. If there is no will, there is a similar process through a Small Estates Affidavit that works very much the same way.
When Should Probate Be Avoided?
In general, probate becomes tricky when an estate has complex assets, if a family is feuding, or in cases with no estate plan. If either of the first two describes your situation, it may be wise to build a trust-based estate plan which ensures your assets pass directly to your heirs without court intervention. While setting up a trust comes at an upfront cost, it is often cheaper to do so in the long run when probate promises to be an extended and trying process.
Probate may also want to be avoided when an individual wishes to protect their estate from public scrutiny. Court proceedings, after all, are publicly available and accessible to prying eyes.
Whether to arrange for your estate to be settled in or out of probate is a personal matter which depends upon your individual circumstances. No blanket statement can be made asserting whether the process is good or bad. This said, it is important to take the time to determine which option is right for you.