“Probate” is often talked about as something to avoid. But what is probate, really?
Probate is the legal process in which a court or judge accepts a Will as valid and appoints the legal representative of the estate. If the Will has named an executor, and that person is available and willing, the judge will most likely appoint that executor.
If there is no Will, the court will determine who can be appointed and how the estate will be distributed.
Having a Will does not automatically avoid probate
It’s a popular belief that having a Will helps to avoid probate, but this is not necessarily true. If the Will is contested by someone, or the named personal representative executor is unavailable, or the deceased’s wishes are unclear, the probate process requires a judge to make decisions for what is in question.
Disadvantages of the probate process
Reasons why probate is best to avoid when possible:
• It takes time. For complex estates, the process can take years. Answers to the court’s questions must be prepared, and supporting documents submitted.
• Costs can be significant. Filing fees, cost of professional help, preparing for court and going to court, all billed to the estate.
• Lack of privacy. Documents filed with the court become public record, including details you’d prefer to keep private.
• Possible legal challenges. Once it has become public, heirs and would-be heirs can come forward and make claims, all of which will need to be investigated.
A trust, however, will help you avoid probate. Find out how in my July column, or contact Janie Stover, AZCLDP at 520-240-6723.