PROBATE - not always bad

Probate can be a time-consuming and expensive headache for heirs, not to mention that proceedings are subject to public record. However, not everything associated with probate is bad. In fact, particularly for smaller estates, there are actually a few benefits. 

Probate is the legal process by which a person's will is determined to be valid. A probate court appoints an official executor for the will to facilitate the settlement and distribution of the decedent's property according to the terms of the will. The purpose of probate is to ensure that the decedent's property is lawfully distributed the way he intended. 

For smaller, less complex estates, probate may not take long and be a relatively uneventful process. However, time is relative, so bear in mind that a short timeframe to settle a will in probate may be six to eight months. For more complicated estates - in which property must be sold, there are disputes among heirs or heirs must be located - the process can take anywhere from two to four years. Obviously, the more the beneficiaries disagree, the longer probate will take. Some beneficiaries may even hire their own attorneys to scrutinize the probate process in order to find ways for larger distributions to go to their clients.4 

The time frame for probate is not just based on the complexity of the estate itself, but also on the individual state laws that govern probate, and the case load of individual courts where probate is filed. 

Probate also offers some benefits where debts are concerned, as it generally sets a time limit on how long a decedent's creditors may make claims against the estate. For example, in California if a creditor does not file a claim on the estate within four months after an executor is appointed, the creditor may not have rights to any monies owed. Conversely, other estate planning strategies may not block creditor claims, and a creditor may file a claim years after an estate has been settled.7 

It may be that some estate planning tactics may be so complex that they create more problems than they're worth. Furthermore, the time and money spent may be futile, in that most wills are processed through probate anyway - even if the majority of the estate is placed in trusts and other estate plans. 

It may be a good idea to evaluate your estate planning needs based on the size of your estate. However, you may not want to transfer too many assets to trusts or other estate planning vehicles in order to avoid probate. That's because those assets may no longer fall under your control should you need to access many of your assets for retirement income or potential emergencies in your lifetime. 

Compliments of Strategy Investing, Andrew Rafal newsletter

Source: LifeHealthPro, 6 reasons why probate isn't that bad, September 13, 2013;