Understanding (and Avoiding) Probate: Part 1

Our legal system is a highly contentious and expensive experience for those caught up in its gears. All too often, it promotes bitter compromise over true justice. That’s especially true for those forced into probate court after the death of a loved one.

What Is Probate?

Probate is a legally mandated process. A judge evaluates a person’s assets after they die, then decides how to distribute those assets to heirs or beneficiaries. Those assets can include everything from bank and investment accounts to property, physical belongings, and less easily quantifiable items of value like art or airline miles. Together, these assets make up your estate. Reviewing that estate and apportioning it to creditors and inheritors is the goal of probate court.

If the decedent prepared a will, the probate court works with a named executor to oversee its administration. If no will exists, the probate process still proceeds, but it often becomes more complex and potentially problematic. Either way, the court works to confirm the decedent paid all debts and to distribute every asset in a manner it views as equitable.

Why the Probate Process Is So Difficult

Probate is a messy, expensive, and potentially contentious process. The first problem is that it’s a very public legal proceeding. The court identifies any and all assets—and possibly personal or family dirty laundry—then makes them available to anyone who’s interested. As a result, alleged creditors will likely come out of the woodwork. Any alleged heir who knows you left assets behind can attempt to lay claim to them.

Probate also takes time. Michigan law requires the estate to notify potential creditors, so probate lasts a minimum of four months in the state. But it can, and often does, run longer—sometimes much longer.

A Source of Family Conflict

Probate court isn’t only a place where petty grievances and family drama play out. Too often, it’s also the source of that drama. Grief and greed can be a potent, unwelcome cocktail. Far too many relationships have collapsed, and families splintered, as hurt relatives fight over what they perceive to be the dying intentions of a parent, sibling, or child. Heartache, pain, and anger can fuel dysfunctional revisionism by family members or friends who feel scorned. And all of it plays out in a public courtroom, with lawyers controlling the strings.

The Rising Cost of Probate

Unsurprisingly, those disagreements can run up the price tag. It’s not uncommon for probate to cost a minimum of $8,000 to $10,000. When the process becomes especially contentious and chaotic, the bills can climb into the hundreds of thousands of dollars.

Keep in mind that all this delay, expense, uncertainty, and potential conflict unfolds at the worst possible time—while vulnerable family members are grappling with the loss of a loved one. The unfortunate truth is that no one wants to go to probate. It’s a terrible place to be. Probate is often run by an overburdened and inefficient court system. It’s a time-consuming, frustrating process—a procedural nightmare with no clear outcomes, guided by rules that are clinical and coldly calculating, with no guarantee that the court will follow your wishes regarding the disposition of your assets.

The Good News: You Can Avoid Probate

Here’s the good news: there is a way to avoid probate altogether. When you place all of your assets into a trust, rather than a will, you shield those assets from the probate process. Shea Law draws on the expertise of our experienced estate planning attorneys to design and implement trust documents. These documents help clients avoid public scrutiny and sidestep the family drama that so often leads to discord and distress.

In Part 2, the follow-up to this piece, we’ll discuss how a trust can make probate less stressful and less costly, protecting both your assets and your family. We’ll also take a broader look at what the estate planning process involves. Along the way, we’ll present a detailed overview of common missteps and a road map for how Shea Law can help you unlock a painless, peaceful alternative to the otherwise messy probate process.