The Probate Boogeyman

A common theme we hear from our estate planning clients is, “I hear Probate is terrible, and I want to avoid it”. Most of the time, after further discussing the client’s wants and needs, it becomes obvious the person didn’t have any idea what probate was, or why they should or shouldn’t be afraid of it.

Probate is the Court-supervised legal process by which the “Probate” Court determines that a decedent’s will is valid, determines who will be in charge of administering the estate (in Wisconsin that person is called a Personal Representative), determines who the decedent’s heirs are, determines what assets the decedent had at his/her death (that are subject to probate), and determines whether the Personal Representative ultimately distributed the property correctly. Probate is a very common occurrence. Are there downsides to Probate? Absolutely. While every case is different, the common problems with probate are that it tends to take longer to complete than other methods (usually 6 to 12 months), there are court fees associated (.2% of the total value of the Estate), and Probate is a public record with most probate records readily accessible over the Internet. Depending on the circumstances of the case, a probate also makes it easy for disgruntled “heirs” to have a venue to battle over an estate, or for claims to be made. In addition, notification requirements can be cumbersome if there are many or unknown heirs. Most people that are afraid of probate know someone that has been through a messy probate, or have dealt with one themselves.

There are good things about probate. The positives of probate are it gives a clear and defined procedure to settle disputes, it creates a more open environment and it ensures that everything is administered properly. While I’m generally an advocate of avoiding probate, there are times where the increased costs of that type of planning (trusts, etc.) don’t make sense for a client. Probate can certainly be a bad thing, but it isn’t always something one needs to lose sleep over. The most important thing is that the client receives the proper estate plan for them, which may or may not involve probate.