The Pros and Cons of Probate

The word “probate” often causes a severely negative reaction. For many people — especially those with large estates — estate planning attorneys recommend keeping property out of probate whenever possible. The probate system was ultimately established to protect property, and protect those people entitled to inherit it. In a few cases, probate may even work to an advantage. Let’s look at the pros and cons of going through probate.

For some estates, especially those in which no will was left, the system works to make sure all assets are distributed according to the laws of the State of California. Here are some advantages of probating an estate:

• It provides a trustworthy procedure for redistributing the property of the deceased if there is no will.
• It validates and enforces the intentions of the deceased if there is a will.
• It ensures taxes and debts are paid on the estate, so there’s a finality to the decedent’s affairs, rather than an uncertain, lingering feeling for the beneficiaries.
• If the deceased was in debt, probate gives only a brief window for creditors to file a claim, which can result in more debt forgiveness.
• Probate can be advantageous for distributing smaller estates in which estate planning was unaffordable.
• Probate can help mediate difficult situations when there are heirs who do not get along or agree, such as brothers and sisters.

While probate is intended to work fairly to facilitate the transfer of property after someone passes, consider avoiding the probate process for these reasons:

• Probate is a matter of public record, which means personal family and financial information become public knowledge.
• There may be considerable costs, including court, attorney, and executor fees, all of which get deducted from the value of the estate, thus diminishing the beneficiaries’ inheritance.
• Probate can be time-consuming, holding up distribution of the assets for a year or more.
• Probate can be complicated and stressful for your executor and your beneficiaries.

While probate is designed to help enforce fair and accurate distribution of an estate, it can create excessive costs and delays. For that reason, many people prefer to use estate planning strategies to avoid probate.

But if you find yourself handling an estate that must go through probate, we strongly recommend retaining an experienced Probate Attorney to help you navigate the difficult and confusing probate process. We have handled many probate estates and can help you.