Avoiding Probate


The probate process can be best described through three basic points.  First, probate can be a somewhat costly adventure for the estate as an attorney is generally hired to help the executor through the process.  The legal costs may range from 2-4% of the value of the probate estate.  The probate estate consists of the value of all the assets you die owning in your own name.  The process begins by the attorney filing a petition to get the executor, which is also called the personal representative, appointed. This is important since the executor named in the will would have no authority until such appointment is complete.  This process will usually require notifying all of the legatees of the appointment and hoping that none of them object. The heirs at law will have 30 days to object to the appointment. There will also be the filing of a first and ultimately a final accounting along with an inventory of all the probate assets.  In addition, there may be the need to file an estate tax return, Form 706, an estate income tax return, Form 1041 along with any state estate tax returns that may be required. The entire process takes approximately one year to complete provided there is no litigation.   This is not a complete list of items that need to be accomplished but demonstrates the time involved with, as well as the cost of, the probate process.

The second point is that you will sacrifice any privacy with regard to what you own as well as their corresponding values, as the probate court is open to the public thus allowing anyone to look at your file.   In this regard, an inventory will be filed with the court that lists all the assets that you owned in your individual name along with corresponding values.  The administration of your estate can be delayed for substantial periods.  There is also the possibility of a challenge to your will, as the will is an estate planning document that must go through the probate process.


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