When it comes to estate planning matters, you may have heard that it is wise to avoid probate, but you might not really know how or why.
What is Probate?
As you probably know, when you die, your “estate” (money and property) gets divided up and distributed to your surviving family members (your “heirs”). Probate is the court-supervised process of distributing your assets to your heirs when you die. If you die leaving property (especially real estate) in your name, the only way to transfer ownership of it to your heirs is for a court to order the transfer through the probate process.
If you do not have a will or a trust when you die, then your estate will have to go through a formal court-supervised probate process to be distributed. If, however, you do have a will or a trust when you die that appropriately names a surviving personal representative (sometimes known as an “executor”) then your personal representative will distribute your property to your heirs in accordance with your wishes expressed in your will. Fortunately in Arizona, if you do have a will, then we can do what is called an informal probate and it really simplifies the process.
A trust can avoid probate altogether because once you have a trust, all of your assets are then transferred to the trust during your lifetime thereby avoiding the need for a court to do supervises the distribution of those assets. The trust acts as an instructions manual for how to distribute your assets and the trustee has already been granted the authority to carry out that process.
Why Avoid Probate?
There are several reasons why you should avoid probate but one of the major ones is because probate takes all of the decisions out of your hands. The whole purpose of probate is to have the judge confirm that your assets have been properly distributed. In other words, in probate, the judge decides where your property goes and to who, and the judge has the final say. For example, if you have minor children when you die and you don’t have a will naming someone to take care of them, a guardian will be chosen for them through probate.
Another major reason for avoiding probate is the time and cost involved. Because probate involves court procedures and must meet legal requirements of administering a probate estate, even the most simple and uncontested probate proceedings can take many months to a year to complete. If there are disputes or claims, it can take much longer. For example, it was reported a number of years ago that the probate estate for country singer, John Denver took over six (6) years to complete!
Court procedures involve court costs (filings) and often involve attorneys, and all this leads to legal fees and costs. Although it is not required that an attorney represent your estate during probate, because of all the procedural requirements in probate, attorneys are usually recommended in all but the simplest of probate estates. Which means the costs add up quickly. Compared to the cost of a typical Legacy Estate Plan, provided by our firm, going through probate is far more costly.
Talk to an Estate Planning Attorney!
If you have questions about probate or how you can avoid probate, call us. We offer creative solutions to avoiding formal probate even with a simple, affordable will package through our Legacy Estate Planning process. We have offices in Sedona, Arizona. We serve Verde Valley and all of Arizona. We offer free consultations and we can help you with your estate planning needs. Contact us to set up your free appointment.