I often find that often people have heard horror stories about probate or that it’s important to “avoid probate” but they aren’t even sure what probate actually is or why people want to avoid it.

Technically “probate” refers to the proving of the will (i.e. that there is a will and that the court has determined that it is valid) and then separately there is the administration of the estate (i.e., the actual handling of the assets of the estate).  Most people refer to these collectively as “probate.” Thus, as you might have already inferred, a will does not avoid probate.  In fact, having a will is a one-way ticket to probate.

When the court is involved in overseeing the administration of your estate (i.e., the probate process), this can cause things to get bogged down and add unnecessary fees.  The executor of your will must be legally acknowledged by the court before the executor can even begin handling your estate.  And then there are a variety of tasks, accountings, and filings that are required as part of the probate process—all while the court babysits your executor, which tends to slow things down.

It’s not uncommon for the costs of probate, between court costs, legal fees, executor commissions, appraisals, and so forth, to cost 2-5% of the probate estate, and the process can take anywhere from several months to a year or longer to complete.

That means that your family could wind up spending 9 to 18 months or longer dealing with the court, spending 2-5% of the estate on probate costs, and because this is a court process, everything—your will, what you owned, who is receiving what, etc. becomes a matter of public record for any nosy person to see.

That is why you hear about people wanting to avoid probate. We help families look at their specific circumstances and estate planning goals and determine whether planning to avoid probate should be part of their planning.  

To learn more about common estate planning issues, check out our free guide, Estate Planning Pitfalls: The 12 Most Common Threats to Your Estate & Your Family's Future, or to discuss your estate planning concerns, please call our office at 919-443-3035 or use our contact form.

Jackie Bedard
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Attorney, Author, and Founder of Carolina Family Estate Planning