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Probate: Scary or Harmless?

By Seth Mattingly, Esq. 

      Many of our clients are fixated on avoiding probate. These clients are totally convinced that probate is the worst thing ever and that it should be dodged like some kind of communicable disease. The truth is that probate has acquired an unfairly bad wrap (partially due to the growing popularity of expensive trusts which avoid probate altogether). The truth is that some families will benefit from the probate process.


      Probate does have disadvantages. It is a lengthy process – often requiring multiple months for completion. It is also a complex process that requires many forms to be filed. Additionally, the decedent’s estate must be organized and inventoried. Most clients are going to need to hire professional help from a lawyer. Unfortunately, this help does not come cheap – some lawyers even charge a percentage of the entire probate estate! Finally, since probate is a court proceeding, it is public. This means that the contents of the decedent’s will can be accessed by anyone. Not ideal for a client who is very private!


      Probate also has advantages. These advantages are sometimes ignored by lawyers who want to sell clients on more expensive estate plans. Since probate is orderly and court-supervised, it may be the best way to deal with an estate that has a lot of creditors. Similarly, if a loved one’s passing is expected to create tension in a family, it can be extremely valuable to have the court ensure that everyone behaves. It is also worth mentioning that the court will guarantee that any fiduciaries (a fancy word for a personal representative or executor) act according to their duties. Don’t forget that probate may be more affordable up front compared to other estate planning strategies (due to the fact that the decedent has a will rather than a trust).


      So, is probate really the Big Bad Wolf? At Mattingly-Ford, we don’t think so. For many families, probate is a good and affordable option. Don’t get distracted by all the noise that paints an unfair portrait of probate. 

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