Estate Planning: What is Probate?

Many clients have asked me:  “what is probate”?  My answer:  it depends.

As an qualified estate planning lawyer will tell you, on a basic level, the term probate is merely a court proceeding(s) in which a court wraps-up or concludes all the legal and financial matters of deceased person.  Think about it:  when somebody dies, they have usually accumulated a lot of stuff.  Where is all that stuff going to go?  In essence, that is the probate process.

The Probate Court is a neutral forum where people can settle disputes or other issues related to a decased person’s estate.  Furthermore, it is not a bad thing.  Many people hear the term “probate” and automatically think it means “bad”.  This is simply not the case.  My opinion  is that too many people have heard that probate is a bad thing so they believe it.

Call it what you want, but probate is just another legal system whereby things get settled.  Like a lawsuit or other dispute, it is the laws way of dealing with a problem:  what to do with all the “stuff” that somebody has accumulated over a lifetime.

The cost of probate, depending upon the size and nature of the estate, will normally cost anywhere from two to ten percent of the total estate.  The more assets and debts, the harder it is to wrap up.  Think about it:  the more creditors there are, the more time and expense it takes to sort out which creditor has priority and how they should be paid.  Some estate simply cannot pay all of their debts and become insolvent.

In addition, it can take anywhere from six months to a year to wrap up an estate.  There are certain deadlines that must be met.  Creditors and beneficiaries need to be notified of their rights and they have a certain amount of time in which they can respond.  Difficult probate estate can take more time.  Fighting between siblings or beneficiaries can cause the estate to be open for years.

Another potential problem with probate is that the proceedings are public – anybody can watch what happens.  Many people can find this an evasion of privacy.  However, there are ways to shorten the costs and time of probate.  Talking with a qualified Apple Valley MN estate planning lawyer is a great way to start.