One of the main reasons people plan their estates, besides leaving something for their family, is to avoid probate. So many estate planning lawyers tell their clients to keep their assets out of probate that most people think probate is something that should be avoided at all costs. Is probate bad? It depends on the circumstances.
While it is often a good idea to avoid probate, the probate process exists for a reason. Under some circumstances, probate provides the oversight and structure to ensure that a deceased person’s wishes are honored and their beneficiaries protected. In other words, you shouldn’t automatically assume that probate avoidance is the goal. Let’s take a look at some of the pros and cons of probate.
No one wants to think about what happens after they die, let’s face it. But if you care about your family and the things you’ve worked hard for, you need to know how the probate process works. I’ve spent a lot of time reading about and talking to families who have been through probate, and now I’m going to share what I’ve learned about its problems.
What Exactly is Probate Anyway?
Before diving into the downsides, let’s clarify what we’re talking about. Probate is basically a court-supervised process that validates a deceased person’s will and oversees the administration of their estate. The court appoints a representative (executor or administrator) who gathers assets, pays debts, and distributes what’s left to the beneficiaries.
Sounds simple enough right? Unfortunately it’s rarely that straightforward.
The Major Disadvantages of Probate
1. It’s Expensive – Like, Really Expensive
One of the biggest complaints about probate is the cost. These expenses can seriously eat into the value of an estate:
- Court filing fees: These vary by jurisdiction but are just the tip of the iceberg
- Attorney fees: Typically range from 1% to 7% of the estate’s total value (that’s a LOT on larger estates!)
- Executor/administrator fees: The person managing the estate often receives a percentage-based fee
- Appraisal costs: Paying professionals to value real estate, businesses, collectibles, etc.
The costs of these things can sometimes take up to 10% of the value of the estate! That’s money that your beneficiaries will never see.
2. It Takes Forever (Almost Literally)
Time is another major drawback of probate. While everyone wants to move on and settle affairs quickly after losing someone, probate doesn’t care about your timeline.
The typical probate process takes anywhere from 6 to 18 months, but complex estates can drag on for YEARS. Why so long?
- Court backlogs and scheduling delays
- Creditor claim periods (typically 3-6 months)
- Asset valuation and inventory preparation time
- Notification requirements for all interested parties
- Resolution of any disputes or challenges to the will
Your beneficiaries may be waiting for assets they need badly during this whole time. One client told me, “By the time we got mom’s house, we had to take out loans to pay for things we could have paid for with the inheritance.” “.
3. Say Goodbye to Privacy
A lot of people don’t know this, but probate proceedings are open to the public. This means that anyone can get information about: nosy neighbors, long-lost relatives, con artists, and marketers
- What assets you owned
- How much they were worth
- Who your beneficiaries are
- How much each person inherited
If you’re someone who values financial privacy, this aspect of probate can be particularly troubling. All your carefully guarded financial information becomes available for public consumption.
4. The Administrative Burden is Overwhelming
Being named an executor sounds like an honor until you realize what it actually involves. The personal representative has to:
- File numerous court documents (will, death certificate, inventory lists, financial records)
- Identify, collect, and manage all estate assets
- Deal with creditors and pay legitimate debts
- File final tax returns and pay any estate taxes
- Distribute assets according to the will or state law
- Document everything and report to the court
And did I mention this person is usually a grieving family member with zero legal experience? Talk about adding stress to an already difficult time!
5. Assets Become Frozen
During probate, assets are typically inaccessible until the court authorizes their distribution. This can create serious financial hardships for families who relied on the deceased’s income or need access to inherited assets to pay bills.
The executor must obtain court authority (through “letters testamentary” or “letters of administration”) before they can even begin managing the property. Meanwhile, bills keep coming, mortgages need paying, and maintenance issues don’t wait for court approval.
Is There Any Upside to Probate?
To be fair, probate isn’t ALL bad. There are some situations where the process provides useful structure and protection:
When Probate Might Actually Help
- It offers structure: The court-supervised process provides a framework for settling estates properly
- It creates certainty for creditors: The process has a defined timeline for creditor claims, after which they’re barred
- It provides oversight: Court supervision can prevent executor misconduct
- It helps resolve disputes: When family members disagree, the court can make binding decisions
Ways to Avoid Probate (Because Let’s Be Honest, You Probably Want To)
After reading about these disadvantages, you’re probably wondering how to keep your estate out of probate. Here are some common strategies:
- Create a living trust: Assets in a trust bypass probate entirely
- Use joint ownership: Property with rights of survivorship passes directly to the co-owner
- Designate beneficiaries: Retirement accounts, life insurance, and certain financial accounts can transfer directly
- Make gifts during your lifetime: You can’t take it with you, so why not give while you’re alive?
The Bottom Line
While probate serves a purpose in our legal system, the disadvantages often outweigh the benefits for many families. The process can be:
- Expensive (sometimes taking 5-10% of estate value)
- Time-consuming (6 months to several years)
- Public (goodbye privacy!)
- Burdensome (administrative nightmare)
- Restrictive (assets frozen during proceedings)
I’ve seen too many families struggle through probate unnecessarily. With some advance planning, you can spare your loved ones this added stress during an already difficult time.
Remember, though, that each situation is unique. What works for your neighbor’s estate plan might not be right for you. It’s always best to consult with an experienced estate planning attorney who can help you navigate these complex decisions.
Have you dealt with probate before? I’d love to hear about your experiences in the comments below!
FAQ About Probate Disadvantages
How much does probate typically cost?
Probate costs vary widely but often range from 3% to 10% of the estate’s total value. This includes court fees, attorney fees, executor fees, and other administrative expenses.
How long does probate usually take?
Most probate cases take between 6 to 18 months to complete, but complex estates or those with disputes can take several years.
Is probate always necessary?
No! Many estates can avoid probate through proper estate planning. Small estates may also qualify for simplified probate procedures in some states.
Who typically handles the probate process?
The executor named in the will or an administrator appointed by the court (often a close family member) handles the probate process, usually with the help of an attorney.
Can probate be beneficial in some situations?
Yes, probate can provide helpful structure for complicated estates, offer a framework for resolving disputes, and provide certainty regarding creditor claims.
Disclaimer: This article is for informational purposes only and should not be considered legal advice. Estate laws vary by state, and your situation may have unique considerations. Always consult with a qualified attorney for personalized guidance.
Probate can be costly.
Probate is a court process, which means there are court costs associated with the process, as well as the likelihood of attorney fees, executor fees, and so on. Probate expenses generally come from estate assets, rather than directly from the pockets of the heirs or the personal representative of the estate. Still, by reducing the size of the estate, probate may reduce the heirs’ ultimate inheritance. In general, the larger and more complex an estate is, the more costly it is to administer.
Why is Probate Bad? (Or: Why is it Good to Avoid Probate?)
Probate is not inherently bad; it’s just that it may not be the ideal process for settling the estate of a deceased person (referred to in legal terms as the “decedent”). Some of the disadvantages of probate are: