Frequently, I'm sitting down with someone who's either perhaps a new client that we're working with on establishing an estate plan, or working with maybe a family when someone has recently passed away. And this question arises, well, what the heck is probate? Probate gets a bad rap (and rightly so!) - it has the connotation to it that it's something we want to avoid (and we usually do!). And so it's important to understand, what is probate? If I could boil it down to a sentence or two, I think probate is best described as the court-supervised process of making sure that the assets and the property that belong to someone who's now passed away ends up going to somebody. Now, of course, that raises questions about, well, what kind of planning do I want in place? Or how can I direct that? How can I make sure that it goes where I want it to go? One common goal of estate planning is to avoid probate. This begs the questions: How bad is probate, anyway? And why's it such a big deal to avoid it? As a bit of background, it's important to understand what probate actually is. In short, probate is the court-supervised process of ensuring and effectuating the transfer of assets from someone that has died to... someone else. That "someone else" gets determined by the decedent's Will (if they had a Will) or by a set of Missouri laws (intestate succession) that dictate who gets assets when there is no Will. There are three primary downsides the probate: (i) it's time consuming (at least 6-7 months and generally longer), (ii) it's fairly expensive (fees are generally payable to the administrator or personal representative of the estate as well as a lawyer), and (iii) it involves the headaches of court filings and related paperwork. So, is probate that bad? Probate can readily be avoided with proper advance planning, so in many instances, letting things wind up in probate is a major setback. Probate is generally not a catastrophic blow to one's overall planning, but the cost and time can feel very wasteful. Alternatives can speed up the distribution process, save money and create a much smoother process. How is probate avoided? Some fairly straightforward planning can keep assets out of probate. Tools and techniques including a trust, beneficiary deed, beneficiary designations and other approaches can each be effective parts of an estate plan that avoid probate. Of course, every situation and individual is unique, particular approaches will vary accordingly.
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