If you’re considering estate planning, you already know the importance of protecting your assets and providing for your loved ones. One common goal of estate planning is avoiding probate, the legal process that follows a person’s death. Probate can be costly, time-consuming, and stressful for your family, so many people take steps to avoid it.

Probate involves the court-supervised distribution of a person’s assets after their death. During this process, the courts authenticate the deceased person’s will, if one exists, appoint an executor or personal representative, pay off debts and taxes, and distribute the remaining assets to beneficiaries. However, probate can be a lengthy and expensive process, diverting valuable resources and causing emotional strain on your loved ones.

By consulting a Seattle estate planning attorney, you can implement strategies to bypass the probate process entirely or minimize its impact on your estate. An attorney can create a comprehensive estate plan that includes trusts, beneficiary designations, and other legal tools that can help your assets pass directly to your heirs without the need for probate.

Timing is important when it comes to estate planning, as once you pass away, it is too late for your family to avoid probate for your estate. So, don’t delay; reach out to an experienced estate planning lawyer today to ensure your family is protected and your wishes are carried out smoothly.

Here are some reasons why you should consider keeping your assets and family out of the probate process entirely or to the fullest extent possible.

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Probate Can Be Costly for Your Estate

There are numerous investments that your family must make if an estate goes through probate. It is in your best interests to hire a probate lawyer, but that requires additional legal fees. A probate attorney may charge fees in the following ways:

• On an hourly basis, based on the amount of time that they spend
• On a flat fee basis, based on the complexity of your case
• As a percentage of the total amount of the estate

In addition, the executor may need extra legal advice during the process to protect themselves from liability. Executors owe fiduciary duties to the beneficiaries, and they may be personally liable if they are accused of breaching these duties. They may also need to pay a probate lawyer to give themselves some personal protection, and they may use estate funds for this purpose.

Either way, your family might need to spend extra money during the probate process, which depletes your estate and their inheritance. It often makes sense to invest money in forming a trust as part of your estate plan, so probate may not be necessary.

Probate Can Be Very Time-Consuming

Probate is not a process that happens overnight. It is a complicated process with many laws and procedures, and it takes time to allow all interested parties to be heard and exercise their legal rights, including creditors and beneficiaries. Then, you are also at the mercy of the court’s schedule, and you never quite know the individual judge’s workload who is assigned responsibility for your case.

Unless you can use simplified procedures (which are only available for estates under a certain size), you cannot expect that probate will be completed in six months. Instead, you should expect probate to take up to a year to complete. Obviously, any disagreements or difficulties in the process can significantly lengthen the timeframe for closing the estate. The process can take much longer if litigation is necessary to resolve a will dispute.

To understand why probate can take so long, it helps to get an idea of the steps in the process. For the estate to emerge through probate and be closed, the following must occur:

• You begin the probate process by filing the deceased person’s death certificate with the local probate court where they lived.
• You submit the will to the court so the document can be authenticated. The will should name the person who serves as the executor of the estate.
• After the court validates the will, you submit a petition to begin the probate process. The court approves the petition, allowing you to begin the probate process.
• The executor informs the estate’s beneficiaries that the probate process has begun.
• Any interested parties may file a will contest if they want to dispute the document’s validity for various reasons.
• Creditors also need to be notified that the estate is in probate—the executor can publish a notice that fulfills this purpose.
• The executor must inventory the estate’s assets and notify the court of their existence.
• The executor must pay the estate’s debts after receiving claims from individual creditors.
• The court must give permission to the executor to transfer the assets to the beneficiaries after the creditors have been paid.
• After the beneficiaries have received the assets, the executor can petition the court to close the estate.

As you can see, many steps need to happen before you reach the point where the beneficiaries receive any assets. Although everyone is seemingly in a hurry to get what they are due, end the probate process, and move forward, they cannot take any shortcuts, as parties must go through the entire legal process.

Avoiding this lengthy process while grieving is preferable, so always discuss your options with an estate planning attorney.

Probate Can Lead to Legal Controversies

One of the biggest potential pitfalls to probate is that there may be a costly and difficult will contest. An interested party has the right to contest a will if one of a number of circumstances apply. Will contests can ensue from the following challenges:

• The person who made the will did not have the mental capacity to do so, as their health had already begun to decline precipitously before the time that they signed the will.
• Someone else had an undue influence on the testator.
• The will was revoked before the testator died.
• The will is incompletely or facially invalid.
• There was fraud involved in signing and executing the will.

Often, a family member who has not received what they think they should may file a legal case. When this happens, families can be torn apart, perhaps even permanently. This outcome is the last possible one that you want to occur.

Will contests can delay the distribution of assets for a prolonged period of time. It is not uncommon for a litigated will contest to take years to resolve. In the meantime, individual family members have likely spent many thousands of dollars on legal fees, and they can experience significant stress in the litigation process.

Since probate is where will contests happen and the process allows people to file legal challenges, it makes sense that you may want to avoid it for certain estates.

Probate Can Be an Unpredictable Process

When the courts are involved, you cannot control the outcome of probate. At the end of the day, a judge has the final say over any matter in probate, applying the facts to the law of your case. Not only can probate be derailed by challenges and litigation, but the process can also be slowed due to the court. The longer the probate process goes on, the greater the chance that there can be even more roadblocks and delays.

Further, you cannot control when an interested party may become involved in the probate process. For example, creditors have the right to file claims against an estate since it is their last chance to be paid from the deceased person’s assets. If an unexpected creditor files a claim against the estate, it may further slow down the process and result in family members receiving less money.

How to Avoid Probate for an Estate

There are ways you can help your family avoid the probate process. The primary way you can accomplish this is by establishing one or more trusts ahead of time. Your attorney can determine the right kind of trust for your needs and work with an estate planning attorney to establish it. Your estate planning lawyer can draft the terms of the trust to meet your family’s needs and ensure they are enforceable under the law.

Assets in a trust do not go through the probate process because the title has already been transferred to the trust. Remember that the end result of probate is to re-title the assets in the names of the beneficiaries. This step is accomplished when you establish a trust while you are still alive. The trust is then the legal owner of the assets, avoiding the need for probate of those assets entirely.

You may consider various types of trusts based on what you anticipate your and your family’s needs will be in the future. The most common type of trust is a living trust, which is revocable and amendable at any time. This allows you to maintain control of your assets while you are living because you appoint yourself as the trustee until you are incapacitated or pass away. You can also form a trust to take care of certain family members who have special needs or to provide for one of your favorite charities.

There are costs to establishing a trust, but it is worth it for the peace of mind, knowing that your family is taken care of and they will not have to go through the difficult probate process. Working with an estate planning lawyer, you can determine whether trusts are the right option for you. Certainly, avoiding probate and making things easier for your family are reasons you may consider placing your assets in a trust.

You may also consider increasing the amount of assets you have in transfer on death accounts. When you name beneficiaries for these accounts, the assets will automatically be distributed to them when you show the institution holding the account that the owner has died. Thus, you can at least minimize the size of the estate that goes through probate. 

How a Probate Attorney Helps You

If your loved one’s estate must go through the probate process, your family should seek legal help to lighten the burden and minimize the chances something may go wrong. You should consider whether hiring a probate lawyer is a worthwhile investment, and the answer to that question is almost always yes.

When you hire a probate lawyer, they can do the following to help your family:

• Handle all of the paperwork that is necessary to initiate probate and file it with the court
• Identify and secure all the assets of the estate to pay claims and be distributed to beneficiaries
• Represent the executor and provide legal advice about estate administration (the executor has high personal stakes involved because they can be liable to the other family members if they make a mistake)
• Represent individual family members or interested parties if there is a will contest
• Paying the debts of the estate and dealing with individual creditors who may make a claim
• Distributing the assets to the beneficiary of the estate

As you can see, a probate lawyer handles a variety of crucial tasks that will otherwise take up your time and cause you stress. Further, mistakes can be costly for your family in many lasting ways. You should contact a probate lawyer at the outset of the process so they can provide you with the maximum amount of assistance, thereby making your family’s life easier.

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