Avoiding probate is usually something most (if not all) estate planning attorneys advocate for several reasons: privacy to you and your family, saving your loved one’s time and money on a slow court process, and a quicker route for beneficiaries to access their inheritance. However, sometimes having your estate go through probate might actually be a good thing.
Tragic situations like the death of a loved one should bring families together, but most of the time it drives families apart. Too often are we contacted by beneficiaries with claims that their family member’s estate is being mismanaged by a trustee, or that they have been disinherited from their family member’s estate planning documents, which they claim to be forged or procured under duress or undue influence. We also see a lot of years-long frictions and divides coming to a head after a loved one has passed away, which usually results in interfamily disputes and nastiness behind closed doors. Many of our clients recognize the potential turmoil their estate may bring, especially if they have some contentious family dynamics or problematic wishes for their estate, which is why they opt for having their estate go through probate just to make sure that their beneficiaries are kept in check and that the court system can intervene when necessary to resolve disputes.
Here are the most compelling reasons why going through probate is actually a good thing:
Full Disclosure Keeps Everyone Accountable
Probate proceedings require the Personal Representative to provide full disclosure of all information and costs to all interested parties of the estate. During probate, the Personal Representative must disclose the Last Will and Testament (if there is one), all assets and their appraised values, costs paid by the Personal Representative, and provide a distribution plan for the court to approve how the estate assets will be distributed. This affords beneficiaries some peace of mind if they are concerned about Personal Representatives hiding or misstating information.
Estate Planning Might Actually Be More Costly Than Probate
Though many estate-planning resources may argue that probate is costly compared to setting up a revocable trust, for some people, the total cost of setting and maintaining a trust may actually be more than what probate costs in the long run.
As time passes, your estate plan will likely need to be updated to evolve with important life events, or contingencies. For example, if your financial situation changes significantly, or if you have obtained substantial assets than when you first set up your original estate plan, you may need to revisit your estate planning attorney to determine whether your estate plan needs to be restructured. Having an estate plan, especially a trust, might help your loved ones save time and money by avoiding probate, but if throughout your life you find yourself making significant changes to your estate plan, you may end up spending almost as much time and money as what a probate would entail.
Probate Shortens the Time for Creditor’s Claims
In Florida, creditors have a two-year period of time to file claims against the estate or trust. However, with a probate, the Personal Representative can shorten this time period through a couple of different options. The Personal Representative can serve all reasonably ascertainable creditors of the decedent with formal notice of the probate proceedings, which then only gives the creditors 30 days to file a claim. The Personal Representative can further limit the claim period to 90 days by publishing a Notice to Creditors. If creditors do not file their claims against the estate within the allotted time, their claims are forever barred, meaning the estate is not responsible for them and the estate has more distributable assets for the beneficiaries.
Probate will also shorten the election period for a decedent’s spouse to file an elective share claim. Under Florida Statute, a spouse who has been fully, or substantially omitted from a decedent’s will can elect to receive a spousal elective share of the decedent’s estate of 30%. If there is no probate proceeding the decedent’s spouse must file a claim within two years of the decedent’s death. But if there is a probate proceeding, the decedent’s spouse only has six months from receiving notice of the administration
Probate Sorts Out Confusing Situations
Administering an estate can sometimes bring about issues that are difficult to navigate. One of the fears many trustees have when they are named in a loved one’s estate plan is the potential liability they face if they make a mistake in the line of duty. Probate can be especially valuable in situations where the decedent’s will is unclear, or the decedent left multiple wills and it is unclear how to consolidate them all. In these situations, a judge can determine the right interpretation of the will so that the Personal Representative is shielded from any liability.
Avoiding or Limiting Family Drama.
Family members and beneficiaries of an estate sometimes may actually want to go through probate if there is hostility between the beneficiaries. If beneficiaries cannot get along, then chances are an estate will not be able to be properly administered without court supervision. Probate can ensure that the assets are controlled and distributed efficiently, without squabbles between the beneficiaries holding up the process. Even if there isn’t any hostility between beneficiaries, disagreements on certain portions of the decedent’s will may not actually get resolved without clarification from the court.
Although a probate proceeding can at times be more costly than an estate plan, there are many reasons why going through probate may actually be favorable to you and your family. Consider all your options with your estate planning attorney to determine whether probate is the best route for you and your estate.
If you need any assistance, do not hesitate to contact one of our experienced attorneys at EPGD Business Law, with offices in Miami, FL, Washington, D.C., and West Palm Beach, FL. Call us at (786) 837-6787 or email us to schedule a consultation.
