Many people have heard that they should avoid probate but don’t understand why. What is probate and should you avoid it? Probate is the proving and acceptance by the Court of the Will. After death, the Will is presented to the Probate Court. Upon approval of the Court, the Will is admitted to probate.
Probate also refers to the process by which the decedent’s assets are distributed to the heirs. One advantage to the probate process is that known creditors are sent a timely notice of administration which is also published in the newspaper. If they do not file a claim within three months of the newspaper publication, they cannot later pursue the debt from the heirs.
Another advantage, in some situations, is court oversight of family conflicts and supervision of the Personal Representative. The probate process terminates when the decedent’s assets have been distributed to the heirs or beneficiaries entitled to it, after the payment of taxes, expenses, and claims.
So why might you want to avoid probate? Since probate estates pass through the court, this makes the Will and other related documents part of the public record. When you avoid probate, there is no public proceeding and privacy is maintained.
However, when there is no probate estate, creditors are permitted to pursue heirs for nine months after the death versus the three month creditor claim period with a probate estate. One key thing to keep in mind is that avoiding probate does not mean avoiding taxes. Taxes are owed in both probate and non-probate estates.