Reasons to Avoid Probate Court

Individuals in the process of resolving disputes over the specifications of a loved one’s estate are often advised not to take their conflict to probate court. What occurs less often is an explanation of what exactly makes probate court such a negative experience.

After a loved one has passed away, the difficult process of dividing their assets begins. In cases involving a will, this process is often simple and straightforward. There are, however, several factors that could complicate the process of carrying out a will’s instructions. If those factors cause cases to be sent to probate court, there can be a number of negative consequences.

There are several scenarios that could require you to attend probate court for your loved one’s estate: the will is unclear or incomplete, your loved one has no will, or the improper administration of the estate causes a probate court hearing.  Keep in mind, if a loved one fails to prepare a will and more than one person is eligible to be appointed the personal representative a probate court hearing may be necessary just to appoint the personal representative.

When assets cannot be divided automatically because no legal beneficiary or joint owner is named, probate serves as a legal decision making process which makes the allocation decisions for surviving stakeholders. The probate process may be a helpful tool in times of uncertainty, however there are many factors that make probate court a less than desirable choice.

Probate will require probate property to remain in the estate and not distributed to beneficiaries for a substantial amount of time. Involving the probate courts will only lengthen the process of finalizing the division of an estate. Not all of the deceased’s property will necessarily be subjected to probate. An experience attorney can help you decide what is and what is not probate property is.

Further, probate court has substantial associated costs. For most probate cases a court appearance is not necessary, depending on the state. The attorneys involved, however, must be compensated for their services in helping to legally divide the estate. The probate process requires a substantial amount of time for filing of estate documents and technical upkeep of the estate during administration. If in addition you are required to go to court, the attorney fees associated with court can be substantially more.

To keep probate costs to a minimum, keep in mind the below suggestions for reducing costs:

  • Involve an estate or elder law lawyer in the estate from the beginning.
  • Have a consultation with the attorney before filing any papers with the Register of Wills or probate court.
  • An experienced attorney will be able to guide you through the estate process with the least amount of expense.
  • In the case of a small estate an experienced attorney will be able to advise you whether you will be able to handle the administration of a small estate yourself.

There are also many ways to avoid the possibility of probate court while your loved ones are still alive. If your aging friends or relatives do not have a will, urge them to contact an estate planning or elder law attorney. This will ensure that when the time comes, their assets can be easily and quickly divided, in a way that they have control over, for the next generation.

For more information on wills and trusts, or to speak with an attorney who specializes in elder law and estate planning, call Doug Lauenstein Law today.

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