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Why You Want To Avoid Probate

Wills Trusts Estate Planning Attorney Avoid ProbateProbate

It’s a word we often hear when we’re talking about wills or special needs trusts – but what does it mean? And why does everyone tell you to avoid it at all possible costs?

Probate is the formal legal process that occurs after someone passes. Probate involves proving in court that a deceased person’s will is valid and it’s the process of distributing the deceased person’s property. If the deceased had a will, the legal process is usually straight forward with little room for dispute and can be handled by your family attorney.

However, when someone passes and they did not leave a will or trust in place, that’s when things can get complicated and costly, and to be honest, sometimes the probate process can get really ugly. Without a will, the court will appoint an administrator for your estate – this could be anyone – to gather and distribute someone’s assets according to law. Sound simple? Not so much, and here’s why.

It May Seem Unfair

The process of divvying up someone’s assets can be a lengthy and complex process. And ultimately, without a will in place, the end result dictated by law could seem unfair to the deceased’s family. Most people’s assumption on how everything will be divided under the law is usually wrong.

Many of my married clients that have children assume that when they pass, 100% their estate will go to their spouse and when that spouse passes everything will go to their kids. In Georgia, this is incorrect.

In Georgia, the estate is divided evenly between the spouse and the kids (with the spouses the share is no less than 1/3). If your kids are 18 years or older then they get their share outright and not in a trust! Every state has its own criteria of how assets should be distributed if someone passes without a will.

As a result, family members may feel short changed or even worse, they could end up empty handed. This is one of the reasons having a will in place is so important. Wills clearly spell out who should get what, when and how.

It Takes A LONG Time

Further, most probate cases take anywhere from 6 months to a few years. If there are questions or disputes about the estate – it can take even longer. As a result, the family or individuals who stand to inherit the assets will have to wait a long time until the issues are resolved.

This can be a challenge for spouses or loved ones who need that money to pay bills. This could leave them in a financial pinch. With a will, assets – including money in bank accounts – can be distributed relatively quickly.

It Can Be Expensive

Not only is it a lengthy process, but it can be a costly process for those left behind. Though costs will vary from state to state, according to the American Bar Association, probate and administrative fees are estimated to be 6% and 10% of a person’s estate.

That can be a bit of money – and that assessment is made on the gross estate – before any fees are taken out. So the final inheritance will be less than what the deceased had intended. So while we may feel like creating a will is expensive, not having one in place when we pass can be even more costly.

Personal Life Becomes Public Record

And it’s just not the financial cost. There are personal costs too. Without a will in place, the deceased’s assets and their life are reviewed by the courts. As a result, everything becomes a matter of public record. So anyone – yes anyone – including your nosy neighbor, can go to the courthouse and find out what and how much the deceased left behind. This includes any outstanding debts or liens.

During this time, long lost relatives or secret relations may be exposed. This could be embarrassing and devastating for some families. Further, there are investment advisors or real estate investors or other less-than-ethical individuals who will want to “help” the family when in reality they’re just after the deceased’s assets. Having a will or trust in place allows families to keep family matters private and out of unintended “eyes.”

Easier To Put A Plan Into Place Now

Finding the time to put a will or trust into place is often a low priority. However, it should be a top priority as the probate process can be long, cumbersome and expensive. By putting a plan into place today, you’re saving your loved ones a lot of time, expense and heartache.

We’ve helped hundreds of families put into place wills or trusts that best meet their needs and protect their loved ones. It’s a straight-forward questionnaire and we’ll guide you through the entire process. I can be reached at or 678.325.3872.