The most commonly held notion about probate is that it is a negative and difficult process that should always be avoided if possible. This misconception is an oversimplification of the truth that does not account for certain aspects of probate that may be desirable under certain circumstances.
Probate is the legal process that follows an individual’s death whereby a probate court will establish the validity of the person’s will, require an inventory and accounting of the individual’s property, provide for payment of any debts or taxes owed, and distribute any remaining assets. There are a number of well-known disadvantages to this process, but there are also some advantages as well.
In this article, we will cover both.
Advantage #1 — Probate allows you the ability to close out creditors to the probate estate within a 90 day window. For comparison purposes, if an individual passes away and all of their assets are held in trusts in order to avoid probate, there is a two-year window for creditors to put in a claim on the assets to pay any outstanding debts of the deceased.
Advantage #2 — Probate may provide you with an opportunity to challenge the validity of a creditor’s claims in court. If you believe a creditor is wrongfully trying to collect on debts from the deceased, probate could afford you with the chance to prevent having to pay unnecessary debts out of the estate that you otherwise may have to accept at face value outside probate.
Advantage #3 — Unfortunately, all relevant family and friends may not agree over how an estate should be handled. There could be disagreements about whether or not the deceased individual was of sound mind when he or she made a decision in their will. Probate court offers an opportunity to settle disagreements over an estate among named and potential heirs. Estate issues are sensitive and can create lifelong rifts between loved ones, so sometimes it is better to allow a neutral judge to make the final decision when there is a dispute.
Disadvantage #1 — Probate generally takes a very long time to complete. In the State of Florida, it can take anywhere from 6 to 12 months to finalize, or perhaps even longer depending on the complexity of the estate. For those who want to quickly administer their loved one’s estate and move on, it may be advisable to avoid probate.
Disadvantage #2 — Probate can be a very expensive process. In Florida, you can expect probate to cost between 3-5% of the overall value of the estate up to $1 million. If the estate is worth more than $1 million, those percentages may decrease, but either way, you will likely be paying a large chunk of money to administer an estate through probate.
Disadvantage #3 — Since probate is handled in court, and court matters are public record, the details of one’s estate may become public knowledge if it enters into probate. Most of us do not want details about our lives and personal finances being made available to anyone who asks. Thus, the lack of privacy involved in probate can be a major drawback.
There is no steadfast rule for who should and should not use probate. Every situation is unique, and it is important that you consult with an experienced estate planning and probate attorney to discuss your specific situation and options. There are circumstances where probate could work to your advantage, and others where it should be avoided, so give us a call today and let us help you make a plan.