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Estate Planning >> Trusts & Living Trusts >> The Problems with Probate

#8, posted 31 Jan 2022 3:05 pm by Legal Helpmate484 words
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Below is a discussion of how to handle probate.

First of all, what is probate? We’ve heard various things about probate and we are pretty sure that it deals with court matters that involve our property. We generally know that probate is something that happens after we die and it’s a negative experience because it is expensive and it takes a lot of time. True, the two main problems with probate are that it can take up to a year to accomplish its own goals (not ours) and it is an expensive purchase of attorney advice and court costs when it may not be necessary at all.

In fact, it usually serves no real purpose except that the attorneys who defend it claim that it controls fraud in dividing up property owned by a deceased person and that it handles the claims of creditors fairly. Consider though, that in the usual case, there will probably be no major creditor claims and the property will go to a small group of family members.

This is what happens in probate. The attorney may make a couple of court appearances but most probably the case will be handled by mail. Your attorney will charge you a fee for taking care of this (as high as 5% of the estate), even though most probate cases do not require any special lawyerly skills like drafting of documents, the ability to resolve conflicts or fight for you in court, or perform any extensive legal research, since usually there is no fight going on and thus no need for a court appearance. What is necessary is the filling out of forms and filing them at the right time, a job usually performed by the attorney’s secretary.

The attorney may charge what the court approves as appropriate and reasonable, or his fee may be based on a percentage of the estate. Even though the assets may be the home of the deceased or other personal property, the lawyer’s fees and attendant court costs and appraiser’s fees may require you to make an out-of-pocket payment of 5%. So, if your estate is even only $500,000, you could owe your attorney as much as $25,000. Although you cannot legally hold an attorney to this arrangement, you could try to get an attorney to agree to help you at a lower than average fee.

Note that the power to select the attorney normally resides with your executor.

To help reduce the cost of probate, it is possible to study the extensive volume of educational materials found in public law libraries regarding the probate system in order to do much of the work yourself or require the executor to attempt this. Your executor can complete and file most of the forms completed by the attorney’s secretary.

The best idea, however, is to avoid probate altogether. Look at the Revocable Living Trust.

Edited 31 Jan 2022 3:05 pm by