Why do I need probate?

With careful planning, you do not need probate! People often think that a will avoids probate. It does not!

A will must be probated in court and the court must oversee the probate proceedings. It is public record and can be open to less scrupulous individuals who look to scam the unwary. Probate can be expensive, time consuming, and exhausting for those involved. I have seen arguments in probate end good relationships with relatives and inhibit heirs from solving problems quickly.

However probate has a huge benefit which is to cut off future creditors. If you could have creditors you don’t know about (this is often true for lawyers and doctors where lawsuits could start years down the road) then a small probate could actually be beneficial.

A trust avoids probate and generally protects privacy as well. Revocable living trusts are commonly used instruments to provide flexibility while avoiding probate.

Sometimes property within an estate can be transferred without probate through a less expensive process called an Affidavit of Claiming Successor or Small Estate Affidavit. Probate can be avoided by proper designation of beneficiaries from life insurance, retirement accounts, and other accounts that have beneficiary designation forms.

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