Anyone who has experienced losing a loved one and having to undergo probate to enforce their will knows that it’s a long, tedious, and often expensive process. Although some people think that probate “isn’t that bad,” a lot suffer the strain physically, emotionally, and financially.
No one likes going through probate. One of the biggest reasons is because of the cost. Although in Minnesota, people can go to probate and spend less than $10,000, it can cost upwards of $50,000 in other states. That’s a huge amount that’s taken out of people’s savings for the mere purpose of enforcing the provisions of a will.
So people are constantly looking for ways to avoid probate, frequently utilizing a revocable trust as a form of an estate plan. On the other hand, those who don’t mind the costs proceed to going through probate. But the cost is not the only reason probate is disliked by many. Anyone who decides to go through probate should at least make sure that they are controlling it.
The way to control probate is to make sure that everything is outlined in advance. The process will be easier, shorter, and cheaper if you specifically indicate the details of how the property should be divided when you pass away. For example, there should be clear indications of who is empowered to sell the house, obtain the deceased’s bank accounts, pay medical bills, etc. This will make it easier for the court, as well as the beneficiaries, to complete the probate process smoothly.
If the beneficiaries go to probate without documents, the intestacy statutes of the State will be applied. These are the government’s plans for the beneficiaries and the assets that take effect if there is no will be available. But relying on the intersacty statutes is not a good plan because you’re giving up control over the distributions of the assets to the courts.
At the very least, there should be a will that guides the court through the probate process. A will is a court document that controls probate and overwrites the default rules laid down by intestacy statutes. But it’s not enough to simply just DIY a will. To effectively control probate, it should:
- Have all the probate rules in it.
- Have all the backups. For example, in case the named administrator cannot administer the estate, there should be a backup that the court can appoint. Or should the named beneficiaries not survive the will, there should be indications about where the money or the assets go to instead.
- Be thorough, legal, and administratively workable.
The probate process is a tough, lengthy, and expensive endeavor. It may not be worth all that time and effort for the sole purpose of dividing the assets of the deceased. People should consider other estate plans that can help them avoid probate. Or if they are okay with the expenses, time, publicity, and nature of probate, they should, at the very least, have a will and other pertinent estate planning documents to control probate.