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I Always Hear You Should Avoid Probate. Why Is That?

in wills Probate

The first part of answering this question involves understanding what “probate” actually is. When people refer to “probate” they are actually referring to the court-supervised process of administering certain parts of the estate of a deceased (“the probate estate”). The probate process involves many possible elements.

You may click here to see a further description of some of those elements of probate.  The current reasons often cited for avoiding probate include the following:

Probate takes too long.

The law in Ohio now presumes an estate will be closed within 6 months unless the Executor or Administrator requests permission of the Court to keep the probate estate open longer and explains why that is necessary.  Even with that presumption, estates can stay open longer than heirs/beneficiaries may feel should be necessary.

Probate is Public

Through the probate process there is definitely some loss of privacy.  One’s Will, the inventory of one’s probate estate and other documents do become public record.

Anyone can easily challenge the Will

This is a claim we hear occasionally but it is not completely true.  Only a person with standing may challenge a Will.  In order to have standing to contest a Will, the person must be the next-of-kin of the decedent or be able to show that, if successful, the Will contest would result in a benefit to that person.  Of course, if one has standing, he or she may initiate a Will contest and that process may tie up a probate estate for a long time.  Most Will contests are unsuccessful but they may use a great deal of time and financial resources.

Probate makes it expensive to manage the inheritance of minors or disabled beneficiaries

If conditions are placed on the inheritance of beneficiaries, or if the beneficiaries are minors or incompetent, then the probate court may need to oversee the administration of the assets beyond the probate estate.  A guardian or testamentary trustee may need to be appointed to handle the assets under the supervision of the court. 

Probate cannot protect inheritance from creditors

Once a person receives his/her inheritance from the probate estate, it is subject to being confiscated to satisfy any creditor’s judgment.   

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