Too often when discussing estate plans, people say things like: "my family knows what they will get"; "I already told my kids who will be in charge"; "my family won't fight"; or "it won't be my problem, they can figure it out." Unfortunately, simply telling your family your plan or assuming they will handle it for you is creating the worst-case scenario, which is otherwise avoidable.
Probate is the term used to describe the court process of administering a person's property and other assets after they have passed on. When a person passes without an estate plan, the person's living family members must file a court action, similar to a lawsuit, in order to gain the authority to administer the estate. Without the probate action, no one is able to access the person's bank accounts, investments, retirement accounts, or sell real estate, pay creditors, and so much more.
To begin the probate process, a petition is filed with the Court, at which point the judge will require information of all living heirs, determine if an existing will was valid, if any, and appoint someone to be in charge of administering the estate. This person is called a "Personal Representative".
Once the Court appoints a Personal Representative, the Personal Representative then has the authority to access bank accounts, sell real estate and other property, and otherwise manage the property; however, the estate often must be distributed according to state laws - so that heirloom the deceased person said their grandchild can have? That grandchild may not have any claim to, and the heirloom may be sold or given to another family member instead. That vintage car the person restored with their child and said it would be theirs? Not so fast - it could quickly be sold and the money split evenly amongst the family. Even worse, probate allows others to dispute who should be the Personal Representative and how the property is distributed. If one heir disagrees or claims they are entitled to more, the family then must litigate the issues in mediation or court, spending more time and money to resolve the issues.
Probate can quickly become a complicated, expensive (often thousands more than an estate plan), antagonistic, and time-consuming process very quickly. Sadly, it is also very common. According to Caring.com, only 32% of Americans had a Last Will and Testament as of 2024. Remember that a Will alone does not avoid probate; rather, it simply tells the Court what you want to have happen in probate. Presumably even less have a Trust in place, which can avoid the probate process altogether.
Don't be the majority and leave your family to the whims of probate - get an estate plan in place and ensure your family is cared for. Remember, you can't take it with you.
