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The Pros and Cons of Probate

In my estate planning world, the word “probate” often carries a negative connotation. Indeed, for many people—especially those with valuable accounts and property—financial planners recommend trying to keep accounts and property out of probate whenever possible. Just last week, I discussed three reasons to avoid probate. That being said, the probate system was ultimately established to protect a decedent’s accounts, property, and family, and in some cases, it may even work to an advantage. Let us look briefly at the pros and cons of going through probate.

The Pros

For some situations, especially when the deceased person left no will, the system ensures all accounts and property are distributed according to state law. Here are some potential advantages of having the probate court involved in wrapping up a deceased person’s affairs:

  • It provides a trustworthy procedure for redistributing the deceased person’s property if the deceased person did not have a will.

  • It validates and enforces the deceased person's intentions if a will exists.

  • It ensures that taxes and valid debts are paid so there is finality to the deceased person’s affairs rather than an uncertain, lingering feeling for the beneficiaries.

  • If the deceased person had debt or outstanding bills, probate provides a method for limiting the time for creditors to file claims, which may result in discharge, reduction, or other beneficial settlement of debts.

  • Probate can be advantageous for distributing smaller estates in which estate planning was unaffordable.

  • It allows for third-party oversight by a respected authority figure (judge), potentially limiting conflicts among loved ones and helping ensure everyone is on their best behavior.

The Cons

While probate is intended to work fairly to facilitate the transfer of accounts and property after someone dies, consider bypassing the process for these reasons:

  • Probate is generally a matter of public record, which means that some documents, including personal family and financial information, become public knowledge.

  • There may be considerable costs, including court fees, attorney’s fees, and personal representative (executor) fees, all of which get deducted from the value of what you intend to leave behind to your loved ones.

  • Probate can be time-consuming, holding up the distribution of your beneficiaries’ inheritance for months and sometimes years.

  • Probate can be complicated and stressful for your personal representative and your beneficiaries.

Bottom line

While probate is a default mechanism that ultimately works to enforce the fair distribution of even small amounts of money and property, it can create undue costs and delays. For that reason, many people prefer to use strategies to keep their property out of probate when they die.

An experienced estate planning attorney can develop a strategy to help you avoid probate and make life easier for the next generation. For more information about your options, call us today at 301.892.2713 or click here to schedule a complimentary Estate Planning Discovery Session. Our priority is caring and establishing relationships with our estate planning clients and their loved ones.

"Living with Your Bags Packed!"®


This article is for educational purposes only and should not be considered legal advice.


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