There are many reasons to avoid probate when planning for your estate. Avoiding probate avoids the hassle of having to go to court, which can be costly and time-consuming. It maintains privacy so that a list of your probate assets and their value is not filed at the probate court for everyone to see. It can allow beneficiaries to receive their inheritance sooner through probate avoidance techniques such as beneficiary designations, joint ownership, and using trusts.
However, there is another reason to avoid probate that is often overlooked. Your heirs will not receive notice of the court filings upon your death. Your heirs are the people who would inherit your assets if you died without a will. Who your heirs are will depend on your state’s laws. They can be different from the beneficiaries you name in the will.
When your will is probated, the court often requires that your heirs receive notice of the court filing. This gives them the opportunity to come forward and contest your will. This can protect against a bad actor who comes forward with a phony will or one that was acquired by undue influence from taking your assets, and can be an important protection if someone has tried to take advantage of you. However, it can also give your heirs who may be unhappy that they were not included in the will the opportunity to come forward and contest your valid will. This can create significant headaches and delays for the beneficiaries named in your will.
Often, when discussing the process of probating a will after someone has died, the beneficiaries do not understand why they have to give notice to the deceased person’s heirs. “But he had a will,” and “They do not receive anything, so why do we have to tell them?” are familiar refrains.
Issues can also arise when identifying and finding addresses for the heirs. Often, the deceased person has lost track of distant family members. Piecing together a family tree can be difficult, especially if other family members have died. Social media websites can be helpful, but often, an heir locator is needed who can comb through public records to identify and locate heirs. Then, of course, the heirs must be told that while they are entitled to notice under the will, they do not receive anything from the estate.
To avoid this potentially awkward situation, is to create a revocable trust while you are alive and transfer your assets to the trust during your lifetime. If all your assets have been transferred to the trust or passed by joint ownership or beneficiary designation, you will have avoided probate. Remember tangible personal items such as cars and boats. Items that require title to pass ownership but do not easily transfer to a trust can be tricky. Be sure to speak with your lawyer about those.
Creating a trust will be more involved than a creating a “simple” will. It will cost more now, but it will most likely saved in legal fees after you die, and it will maintain your privacy.
People often want a “simple” will, but sometimes the simpler option is not the best. If you leave assets to friends, family, or a charity in your will, know that the laws of your state will determine who receives notice that the will is being probated. If you decide to proceed with a will that needs to be probated, work with your attorney to create a list of your heirs and the current addresses to make the probate process easier for your beneficiaries.
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