Why Do People Want to Avoid Probate?

courthouse-w-columnsWhen a loved one passes away, people react differently.  This is obvious from attending any funeral; some are stoic, some are very emotional, and many are in between.  But beyond the emotional and grieving process, people also react differently addressing probate.

First, many people have no idea what probate really is.  Some think because the decedent had a will, the probate process is simply the appointed executor distributing whatever assets they can find.  Others know it has something to do with the legal system, but want to avoid it at any cost because of the mystical, mythical horror stories they have heard alluded to.

In reality, probate is an organized legal process for gathering the assets owned by the decedent, paying debts, determining beneficiaries or heirs, and distributing the gathered property in accordance with the decedent’s will or state law.  Because of the nature of the decedent’s estate, some family members don’t need to utilize probate.  But many others are well advised to do so even if it doesn’t appear necessary immediately.

Even with all this knowledge, some people still want to avoid probate for various reasons.  Privacy is a concern for some.  They are afraid all their personal information will be on display to every nefarious character.  Generally, detailed personal information is not included in probate filings.  Even the inventory, which lists property within the probate estate (which often is only a small fraction of a decedent’s entire estate), often doesn’t need to be filed in Texas.

Others are afraid that filing probate will result in a will contest or the filing of claims by creditors (legitimate or otherwise).  This concern can often be avoided by an individual using probate avoidance techniques in their estate planning.  But sometimes those techniques result in complexity and pitfalls that are more serious than the risk of a will contest.

So, there are a few conclusions one can reach from these concerns.  First, if you are concerned about probate, the time to address it is before the individual in question passes away.  Most issues people fear about probate can be minimized through proper estate planning.

Once the individual passes away, with or without a will, we must deal with the facts as they stand.  To properly accomplish the wishes of the decedent, it may be necessary to use the probate process.  The wisest course is to engage an attorney focusing their practice on handling probate matters.  They can advise on whether problems are likely to arise, what alternatives exist to minimize the problems, and whether any other alternatives exist to pass title to the property to rightful beneficiaries and heirs.  The wrong course is to simply do nothing.  You may discover too late that what might have easily been resolved is now a much larger or impossible problem.

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