What is probate

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What is probate and why should I avoid it?

Much of modern estate planning is centered on avoiding probate, but what exactly is it?  Probate is the judicial process of winding up the affairs of the person who has died (the decedent).  It includes asking the court to name someone as the decedent’s personal representative and determining if there is a valid will.  Probate law is state specific, so the cost and length of the procedure can vary widely from state to state.  In Utah, probate is required if the estate includes real estate of any value and/or if the estate has assets (other than land, and not including cars) whose net worth is more than $100,000.  Utah allows a less expensive informal probate proceeding where everyone involved is in agreement and cooperating.

There are advantages and disadvantages to probate.  One advantage is that the actions of the personal representative are monitored by a court.  This can be helpful if controversies between heirs exist and there is likely to be litigation between parties.

Another advantage is that the creditors of the estate are given a finite amount of time to bring a claim.  If a creditor fails to bring their claim before the cut-off date, then their claim will be barred.

One of the disadvantages of probate is the cost.  There are court costs and administrative expenses.  The personal representative must either work through the process of filing for probate on their own, or hiring an attorney to assist with the process.  And it comes at a time when the family is grieving the loss of a loved one.  The costs of probate can add up, especially if family members are not in agreement about what should be done.

Another disadvantage of probate is the time involved.  It can take a significant amount of time to get documents prepared and signed by all the interested parties and then filed with the court.  Then the court must review those documents before issuing letters of administration to the personal representative.

Additionally, the probate process is a public process.  Court documents are public record unless they are sealed by the court, so anyone can gain access.

Often the disadvantages of probate administration outweigh the benefits.  Please call if you are interested in learning more about the options for your personal situation.

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