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Probate Isn’t Necessarily a Bad Thing

Posted by Nina Whitehurst | Sep 27, 2018 | 0 Comments

An estate planning attorney can guide you through the process … with or without probate.

Financial and family situations are often challenging, as you work to protect your assets, privacy and family peace. You have to deal with state laws, federal laws and the word “probate” but it isn't always a bad word, according to the Rushville Republican in “Probing Into Probate.”

The first thing people think about when they hear the word probate is cost. There are costs associated with probate including court fees, personal representative fees, attorney fees and accounting fees.  However, there are also fees associated with creating revocable trusts and trustee fees for administering trusts. The question should be, do you want to pay those fees now or pay them later?

Time is another reason why people don't want assets going through probate. While that's understandable, probate serves an important purpose. During the six to 12 months that it takes for the average estate to go through the process, creditors have a limited amount of time during which they can file any claim against the estate. If no probate estate is created because trusts were created, it's possible that assets could be distributed.  However, a creditor could then make a claim within the legal time period. What would happen? If the court deems the claim to be valid, the beneficiaries may have to return some of the assets they received under the trust or the trustee could be responsible for paying the claim.

Privacy is a key component of avoiding probate. If there's anything you don't want the public to know about your assets and how they are being distributed or your last wishes, then you do want to structure your estate plan to put all possible assets into vehicles that do not go through probate.

Emotions can run high in families, while estates are being settled. Not everyone will agree with how the estate is being handled. That can lead to fractures and estrangements. In some cases, families do better, when a judge is making the hard decisions, so they don't have to fight among themselves.

Most people don't pay federal estate taxes now that the exemption is roughly $11.2 million per person. However, your state may have an inheritance tax, estate tax or both.

Whether it's a good thing to have your estate go through the probate process is a very individual decision. If you are in your 50s or older, in poor health or have a significant amount of assets, you may want to do some probate avoidance planning.

Reference: Rushville Republican (Aug. 28, 2018) “Probing Into Probate”

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...


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