When I have an estate planning client in my office for a meeting, I can virtually guarantee that they will express a desire to avoid probate. The probate process seems to be a bit of a boogeyman, and no one seems to want to go anywhere near it. But how bad is it?
What is probate?
Probate is a court process that determines how a deceased person’s property is to be distributed. The probate court uses the deceased person’s will, or if there is no will (or if the will is invalid for some reason), the intestacy law to make those determinations. In most cases, notice of deceased person’s death is given, and creditors are put on notice that if they want to make a claim against the estate, now’s the time. If the deceased person left behind minor children, the probate court will also select a guardian for them if necessary.
Why would someone want to avoid probate?
That doesn’t sound so bad, right? There are some disadvantages to the probate process: time, publicity, and money.
The probate process, like any other court process, takes time. For a full probate (there are different procedures in some situations, such as “small estates,” which Missouri currently defines as an estate valued at less than $40,000), the process is going to last at least six months, because that’s usually how long creditors have to file a claim against the estate in Missouri once it is opened. Realistically, it’s going to be longer than that. It is possible for probate to drag on for years and years, but that’s thankfully pretty rare–there’s usually a problem or major dispute that slows things down in those cases.
Wills that are admitted to probate are public documents. Of course, generally the more famous (or perhaps infamous) you are in life, the more interesting your will is going to be to others. That said, people can–and do–search admitted wills to find people that are set to receive property from an estate, so not being famous doesn’t necessarily rule this out.
Probate, like almost any other court proceeding, requires the payment of a filing fee. Exactly how much the filing fee will be depends upon the county where the filing takes place. Around here, the fee is probably going to be a few hundred dollars.
The attorney and the personal representative may charge a fee to the estate for their services. Often, a personal representative who is a family member or close friend of the deceased will waive their fee. Missouri has a minimum fee schedule that attorneys and personal representatives can charge. Some attorneys may use the minimum fee schedule, but others might use an hourly rate or a flat fee. I won’t bore you with the math, but it’s going to be somewhere between 2% and 5% of the value of the estate.
Also, there can be a multiplying effect here if you have property–particularly real estate–in multiple states. If you have property in multiple states, your personal representative will have to go through the probate process in each state where you owned property, a process known as “ancillary probate.” That can be a small nuisance–say, someone here in the Kansas City area who has property on both sides of the state line–or a much larger problem, if there is property in many states far apart from one another.
And that creates the multiplying effect: time to handle the probate in each state, and the money to file and pay attorney fees in each state. If you are in this situation, probate avoidance is worth considering.
Does probate have any advantages?
It does! Probate is an important system: without it, the process of passing property from one generation to another (or maybe somewhere else) would be a haphazard mess. So how can probate be helpful?
- Ease of small estate process. If a decedent dies with a “small estate,” which in Missouri is an estate of less than $40,000 in value, the process becomes less complicated. Additionally, small estate filings are generally less expensive than a full probate.
- Deadlines for creditors. Up above, I mentioned that creditors have certain time limits to make claims against a deceased person’s estate. Those creditors have to make their claims before time runs out, or they lose them.
- Supervision. In certain situations, an estate can be distributed under supervised administration, where almost everything that happens in the estate has to be approved by the court. For a high-conflict family, this kind of supervision might be a blessing for the personal representative, knowing that the probate judge is approving transactions.
- Reduced upfront costs. I mentioned earlier that probate costs money. Generally, though, you’re probably going to pay more for an estate plan that incorporates probate avoidance (there are some “do-it-yourself” methods of probate avoidance, but they can be dangerous if used incorrectly). Of course, since the probate process has costs involved, you’ll need to weigh which makes the most sense for your situation.
In short, probate isn’t all bad. In some situations, like high-conflict estates, it can be pretty helpful. However, people who expect to leave large estates, people who would prefer to pass their property on quietly, and people with property in multiple states will probably benefit most from probate avoidance.