In the estate planning world, the word “probate” often comes with a harshly negative undertone. Indeed, for many people — especially those with larger estates — financial planners and estate planners recommend trying to keep property out of probate whenever possible. That being said, the probate system was actually established to protect the property of the decedent and his/her heirs, and in a few cases it may even work to an advantage. In this article, we will look briefly at the pros and cons of going through probate.
THE PROS OF PROBATE
For some estates, especially those in which no will was left, the system works to make sure all assets are distributed according to state law. Here are some potential advantages of probating an estate:
● It provides a trustworthy procedure (and Court oversight) for redistributing the property of the decedent if no will was left.
● It validates and enforces the intentions of the decedent if a will exists.
● It ensures taxes and valid claimed debts are paid on the estate, so there’s a finality to the decedent’s affairs, rather than an uncertain, lingering feeling for the beneficiaries.
● If the decedent was in debt, probate gives only a brief window (4 months in Minnesota) for creditors to file a claim, which can result in more debt forgiveness.
● Probate can be advantageous for distributing smaller estates in which estate planning was unaffordable or impractical.
THE CONS OF PROBATE
While probate is intended to work fairly to facilitate the transfer of property after someone dies, consider trying to avoid probate for these reasons:
● Probate is a matter of public record, which means personal family and financial information become public knowledge.
● There may be considerable costs, including court, attorney, and executor fees, all of which get deducted from the value of the estate. This means less money goes to your family and more money goes to those individuals listed above.
● Probate can be time-consuming, holding up distribution of the assets for months, and sometimes, years. In Minnesota, I tell clients to expect a minimum of 8 months, including 4 months of simply waiting for the creditor claims period to expire. You also have to wait 2 weeks while notice of the probate hearing is published in the local newspaper.
● Probate can be complicated and stressful for your executor and your beneficiaries.
● Because probate is a court proceeding, it can lead to a more convenient avenue for a disgruntled beneficiary to object to the decedent’s wishes in his or her will.
Bottom line: While probate is a default mechanism that ultimately works to enforce fair distribution of even small estates, it can create undue costs, delays and can invite disputes among heirs. For that reason, many people prefer to use strategies to keep their property out of probate when they die.
A skilled estate planning attorney can develop a strategy to help you avoid probate and make life easier for the next generation. For more information about your options, contact us today to schedule a consultation.
Zach Wiegand is a Burnsville, Minnesota estate planning attorney who also handles probate in Dakota County and other counties in the greater Twin-Cities area. Zach is the owner of Gold Leaf Estate Planning, LLC, which is a Minnesota estate planning law firm that handles probate and trust administration in Minnesota. Zach was named a 2017 Minnesota Super Lawyer – Rising Star and he is a member of WealthCounsel – a national organization of estate planning attorneys dedicated to practice excellence. You can contact Zach via e-mail at zach@goldleafestateplanning.com or by calling (952) 658-6503. Gold Leaf Estate Planning is located in Burnsville at 3000 County Road 42 W., Suite 310, Burnsville, MN 55337.
