Probate is a legal proceeding in which a state court oversees the process of identifying a deceased person's heirs, property, and valid debts. The goal is to see that a decedent's valid debts are paid and to distribute the remaining estate assets to the proper heirs. The process of actually identifying a decedent's heirs, property, and valid debts is done by the executor (also known as estate representative) of the estate. If the decedent left a will, the court normally appoints the person named as executor in the will as the executor. If there is no will, the court will usually appoint a relative or friend of the decedent to act as executor. The executor, usually working in conjunction with a probate attorney, will have the task of sorting out the estate. 

      There are some types of property not subject to probate. For example, life insurance, 401k accounts, IRAs, and other types of retirement accounts usually have named beneficiaries and pass directly to the named beneficiaries without needing probate court confirmation. Likewise, real estate held in joint tenancy will bypass the probate system, but can have some undesirable tax issues. 

      There are three main problems with the probate process: time, money, and loss of control.

      Time wise, the fastest your heirs can get through the probate process is six months; although it is more likely to take closer to a year. There are even some estates that, for whatever reason, end up taking years to probate. Time delays in distributing the assets of the estate can cause a whole multitude of problems including family financial hardship, discord among family members, and even a loss of value for some estate assets. 

Money-wise, the probate process is expensive. Court fees, attorney fees, executor fees, appraisal fees, delays, and loss of market value on assets. Some estimates put the true cost of going though the probate process as high as 10% to 15% of the gross market value of the assets in the estate. For example, if your estate consists solely of one house at the time of your death and the market value of the house is $400,000, the true cost of going through the probate could be as high as $40,000 to $60,000. It does not matter what you owe on the house because the fees are based on the gross estate. So in the above example, if you had a mortgage on the house, the equity could be quickly eaten up by probate costs and lost value from the probate sale of your property. 

      Finally, your family may suffer a loss of control over family assets. In some cases income producing assets or needed cash reserves have to go through the probate process. The courts usually accommodate family petitions for preliminary distributions or payment of an allowance to family members, but the point is your family and/or heirs would be reduced to asking for help and there is no requirement that the court approve the requests.

      You may be outraged at the thought of the probate process and thinking how can they do this? Well, it's not they, it's you. The probate system is only there as a method of processing the estates of people who do not take care of their own estate planning while still alive. It was actually designed to protect your estate, creditors, and heirs in situations where you failed to take the appropriate steps to protect them yourself. Unfortunately, the probate system has become so bureaucratic and expensive that sometimes it seems like it does more harm than good. In almost all situations, probate should be avoided if possible.