Pros and Cons of Probate

author: Dustin Wetton

It was another good week for Laurus Law Group. We have updated our website to provide more information about the services that we offer our clients, along with providing a frequently asked questions (f.a.q.) page so that we can answer the more universal questions that we are frequented by. Earlier this week, I attended a CLE at the Vista Courthouse dedicated to helping attorneys understand the probate filing process better. The seminar was hosted by the North County Bar Association and was done very well. Probate is part of estate planning and thus it was a very needed educational seminar for me to attend to better assist our clients.

Probate is a necessary process for all of us, whether we enjoy thinking about it or not, almost every one of us will have to go through the process. Actually, there are little times in which you can avoid probate. Probate is the court that addresses the estate of a person after they pass. There are basically two types of cases that a probate court finds. The first is intestate. Intestate probate is when a person dies without any will in place. Thus, the court will have to find out what property is in the estate and then it will appoint a person to be in-charge of distributing the estate according to the laws of the jurisdiction in which the person passed. This person will then pay creditors and then designate the rest of the property of the estate to the heirs according to intestate succession laws that are governed not by the interest of the deceased or the family, but instead by statutes. Thus, a pro of the probate process is that it allows the property to be dispersed, even if the deceased does not have an estate plan. Also, this process helps to keep the emotions and desires of the families out of deciding what to do with the property, which is most often a good thing.

The second type of case that a probate court sees is called a testate case. Testate cases are those in which the deceased person passed with a will in place. This will of course can open the door to the creativity of estate planning, meaning that the will can either be just the simple will of a person, or it can be a pour-over will that dumps whatever is not part of a larger estate plan into the trusts document. There are a huge variety of types of estate plans and ways to plan for a testate case, but for this blog’s purpose, I am just going to explain that there is a testate case. Through a testate case, the deceased has control over how the property will be dispersed, and the court will just have to make sure that the will is valid. If a trust is involved, then the court will just have to make sure that the trust is valid. Also, the court will hear any disputes about the validity of either documents. By creating a will, the estate can save a large amount of money by reducing the probate courts time and effort. By creating a trust and a pour-over will, the estate would save even more money.

Thus, when thinking about probate, the pros are that its great for any disputes and to ensure that some plan is created for every deceased, but the cons are the costs and time burdens that it places on those left behind. Sometimes the costs can be around 7% of the total estate, which can really be quite a lot. Thus, creating some sort of plan, even if its just your first draft, is a great idea for every person, in every situation.

If you have any questions or comments regarding this blog, email us at blog@lauruslaw.com