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Do You Need to Avoid Probate?

By Nat, Dan & Daniel

June 4, 2020


Probate is the name for a legal proceeding in which a deceased person’s Last Will and Testament (or “Will”) is presented to the court which has legal authority (or “jurisdiction”) over the settlement of estates.

The purpose of probate is so that the court can determine whether or not the Will is valid. If the court determines that the Will is valid, then the Will is said to have been “probated,” that is, proved. The court will also appoint the executor and a guardian for minor children, if necessary. The court will oversee how the executor is managing the estate by requiring the executor to file reports from time to time.

Is it best to avoid probate?

A popular misconception is that you must avoid probate at all costs. The reality is that it depends.

Probate procedures vary enormously, not only from state to state, but even from court to court. You’ll want to find out how your local probate court rates on the following factors.

Questions to ask about the probate process

  • How high are the probate fees? In some parts of the country the probate fees your estate will have to pay to the court are very expensive. You’ll likely want to avoid this. In other places, they are minimal and may not be worth the trouble of avoiding.

  • Will the court process prolong the settlement of your estate? In some places it may take weeks or months just to have your executor appointed. In other places, the court can appoint your executor the same day if you have the original Will, death certificate and some simple paperwork.

  • How daunting is the paperwork? In some places, the probate forms are simple and in others they can appear incomprehensible.

  • Does the probate process add value? Some people feel like having the judge oversee the process adds value. Some feel they make sure everyone is following your wishes, as expressed in your Will. But, others feel the process is more bureaucratic in nature and adds little value.

Your attorney can help you find these answers and advise you regarding whether avoiding probate is desirable where you live.


Excerpt from the book Estate Planning for the Savvy Client: What You Need to Know Before You Meet With Your Lawyer by Mary L. Barrow, Esq.

Copyright ©2020, 2017 by Mary L. Barrow

THIS EXCERPT IS A BRIEF SUMMARY FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE USED AS A SUBSTITUTE FOR THE ADVICE OF COMPETENT LEGAL COUNSEL FROM AN ATTORNEY ADMITTED OR AUTHORIZED TO PRACTICE LAW IN YOUR JURISDICTION. YOU SHOULD ALWAYS CONSULT YOUR ATTORNEY BEFORE IMPLEMENTING OR CHANGING ANY ESTATE PLANNING STRATEGY.