4 Reasons Probate is Actually Great
“Probate is so expensive.”
“Probate takes forever.”
“Probate is so intrusive.”
“I really just want to avoid going to probate.”
Sound familiar? If you’ve researched estate planning on the internet, you’ve probably noticed that probate gets a pretty bad rap—but why? The attorneys at GRIFFITH LAW GROUP often disagree with what can be found on the internet, and for good reason. In this article, we discuss why we think “going to probate” is actually great.
But first, what is probate? Probate is the legal process of proving to a judicial authority (typically a county probate court) that a particular document is the genuine last will and testament of a deceased person (called a “decedent”). In other words, you are trying to prove the validity of someone’s will.
Here are some positive things about probate:
- You get to talk to a Judge or Magistrate Judge about anything and everything.
In Marion County, Indiana, where our law offices are located, the probate court staff is kind, courteous, helpful and encouraging—which is important when dealing with the death of a loved one. One of the many benefits of this particular probate court is that they have magistrate judges readily available throughout the business day to answer questions you may have about the probate process or substantive law. You can stop by the probate office downtown or call them. Who better to ask a probate question than a probate judge?
- A bond is required for all personal representatives.
Personal representatives (also called “executors”) are the people appointed in a last will and testament to carry out the wishes of the testator (the person who made the will). In Marion County, Indiana, these personal representatives are required to purchase a bond. This bond serves as security (a form of insurance) for the testator’s beneficiaries, should the personal representative make mistakes or commit some type of fraud or wrongdoing, such as stealing from the estate. In other words, the probate court is protecting your beneficiaries through the bond requirement.
- Unsupervised administration is available, and it’s quick and painless.
There are two types of probate administration: supervised and unsupervised. Supervised administration happens when beneficiaries and heirs do not agree on the validity or existence of a will. In these instances, the probate court will “supervise” the administration of the will’s provisions. The personal representative must report to the court frequently and obtain the court’s permission for certain actions. Supervised administrations are typically longer, more complicated, and more expensive—this is where probate gets its bad rap.
HOWEVER, if all of the heirs and beneficiaries agree on the validity and existence of the will, the probate court will usually allow unsupervised administration. This means the court will simply appoint a personal representative, and the personal representative will carry out the provisions of the will, and report back to the court when he/she is finished. In other words, the court is going to stay out of the personal representative’s way, as long as things go well. Unsupervised administration is the most common type of estate administration, and often only takes a few months to complete the entire process.
- The Probate Judge is there to oversee the process.
Many people believe that setting up a living trust is better than executing a last will and testament when creating an estate plan. The preference for the living trust is based on the fear of probate, its costs and its length of time. A living trust does not require probate.
However, if you use a living trust, you are “trusting” that your trustee isn’t going to steal from you and your beneficiaries. A living trust is private, and its terms are carried out by the trustee, very similarly to the role of a personal representative in probate. However, when you use a living trust, there is no probate judge overseeing the process. Having a judge as a backstop to your estate administration promotes honesty among all parties because, quite frankly, no one wants to go to jail.
There are other issues regarding living trusts, which we address in another article: Why You Probably Don’t Need a Living Trust. [link to article]
In summary, probate is not as bad as advertised. In fact, probate courts are set up as an aid to protect your estate and your beneficiaries, not as a burden to drain your resources. There are times when a last will and testament makes more sense than does the use of a living will. There are other circumstances, when a living trust is a better estate planning tool. Only a knowledgeable, experienced estate planning attorney can help you make the right choice in estate planning tools.