Is Avoiding Probate Automatically the Better Choice?

Start With Understanding Exactly What Probate Is

Okay so, probate. If you’ve heard the word at all, chances are it might seem a bit scary. A lot of people wonder if avoiding probate is possible and better than going through it. But although some problems can arise with probate, the process itself isn’t a bad thing. Here’s the deal:

When someone dies, their personal representative collects their assets – meaning all finances, property, and possessions. They then distribute them based on what the deceased’s will says. Since the will is a legal document, a court oversees this process to make sure it’s followed exactly. It makes sense and is a good thing. This legal process is probate.

It can sometimes take a little while, but it’s made up of four relatively straightforward steps.:

Steps to the Probate Process

1. Qualification

The first step in the probate process is Qualification, which just means making sure that the will is valid, as well as identifying the will’s personal representative (also sometimes called an Executor).  It’s normally simple, meeting with the Clerk of the Court to hand over the will, fill out the necessary forms, and receive a Certificate of Qualification. After qualification, the personal representative has the authority to begin collecting and distributing the deceased’s assets. 

2. Giving Notice to Heirs:

Once the personal representative is qualified, he or she is required by law to notify all of the heirs of the person who died.  This must be done within 30 days after the personal representative is qualified.

3. Collection of Estate and Filing of an Inventory:

Next, the personal representative must collect the assets of the person who died and submit an inventory of the assets.  Put simply, the inventory is a list of all the assets the person owned when they died along with an estimated value for each asset.  This inventory must be filed with the Commissioner of Accounts – an attorney appointed by the Circuit Court in each county to oversee estates.

4. Distribution of Estate and Filing of Accounting:

After filing the inventory, the personal representative must pay all debts of the deceased and distribute any of their remaining assets as laid out in their will. To ensure that this is done legally, the personal representative must submit one or more Accountings to the Commissioner of Accounts. Each Accounting shows how the personal representative has used the assets of the estate.  

Problems with Probate

While the steps seem pretty straightforward, several hurdles arise regularly in the process, so you’ll have to personally evaluate if avoiding probate is the right choice for you and your estate.

Cost: Between paying a fee for the clerk and fees for the Commissioner of Accounts, probate can be a bit expensive. Of course, this is nothing compared to probate in other states, but it can still pose a problem for certain people with little to no assets.

Time: With a simple estate, the probate process can be finished in as quickly as 6 months, but that time can extend to several years if you’re dealing with a complex estate.

Complexity: The personal representative is required to notify other heirs, file the inventory, while also complying with various rules and regulations. Some people find the process complicated, daunting, or overwhelming.

Public Record: When an estate goes through probate, everything goes on the public record, meaning anyone can see your will and exactly what assets you had and who you left them to. Some people do not want their will or assets to be public information. 

Good Things About Probate

While there are some problems with probate, there are several benefits to consider as well:

Lower initial cost than the alternative: People will often go to great lengths to avoid the probate process.  One of the most popular techniques is to transfer everything you own to a revocable trust so that when you die, you don’t technically own anything. However, most alternatives to the probate process are more expensive to set up than a simple will.

Your estate plan is easier to maintain: As we mentioned above, there are various techniques that people use to avoid probate. But they all require more ongoing maintenance than using a simple will and planning to go through probate.  For example, a revocable trust needs to be updated each time you purchase real property or change financial accounts. This can be a huge pain in comparison with a will, which rarely needs to be changed.

Is Avoiding Probate Best Or Not?

So which is the best route, to go through probate or not? Well, it depends on you as an individual.

Here are a few questions you can ask yourself to determine which avenue might be best for you and your estate:

  • Do I mind if my estate plan and assets are public records after I die?
  • Will anyone need assets immediately after I die?
  • Do I have someone I can appoint as a personal representative who can handle the probate process?
  • Do I prefer to spend additional money now to avoid my heirs have to deal with probate?

Whether or not to avoid probate is a decision that each person needs to make for themselves.  In later posts, we’ll discuss various options for avoiding probate. But, keep in mind that, in Virginia, many people find that using a simple will and going through probate is the cheapest, best option.  

 

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