Probate: What is it and why do people want to avoid it?
What is Probate?
Probate means “prove” and it describes the process by which a person’s (decedent’s) estate is settled after he or she passes away. This “proving” process is structured to ensure that heirs, beneficiaries, and creditors receive what they are due from a person’s estate. In order to settle a person’s estate through probate the court must identify a Will (if one exists), determine if the Will is valid, inventory and appraise the decedent’s property, pay remaining debts, and distribute the remaining property according to the terms of the decedent’s Will, or, if no valid Will exists, according to Florida law.
Many people who contact my office incorrectly believe that they can avoid probate by having a Will. I explain to them that having a Will simply means that they are choosing to have their estate distributed per their terms through the probate process. As a result, by executing a valid Will people can have peace of mind, knowing that their estate will go to who they choose when they pass away. I also stress to my clients the importance of naming a trustworthy person to serve as personal representative in their Will. A personal representative is the person appointed by the court when probate proceedings commence who is responsible for overseeing the probate process.
Pros and Cons of Probate
The probate process has some disadvantages that many people want to avoid. Probate can be time-consuming and complicated. During the probate process many of the decedent’s assets are frozen and require the court’s involvement to handle the decedent’s affairs, which increases the costs associated with the process. The costs associated with probate are also a reason that people may want to avoid the process altogether. The other common disadvantage associated with probate is that the decedent’s private affairs become public. For example, the terms of the will, the nature and amount of the decedent’s estate, and any disputes related to the will become public record. People who want to avoid probate should contact an estate planning attorney and discuss ways to do so, such as creating a revocable living trust.
There are also advantages to the probate process that should not be ignored. Having court oversight can be invaluable and will help ensure that the personal representative properly distributes the decedent’s assets according to the terms of the will. An estate planning attorney can help you weigh the disadvantages of probate—such as time, cost, and lack of privacy—with these advantages.
Whether you are considering creating a will, forming a revocable living trust, or just need guidance to help you through the probate process of a loved one, you should contact estate planning attorney Javier Centonzio for compassionate and effective representation.