You may have heard the legal term “probate”  used in casual or formal conversations.  Probate is an area of the law that you should become familiar with because it can have enormous consequences for your loved ones and is oftentimes the cornerstone for estate planning.

When we talk about probate, we are generally referring to the legal process by which a probate court supervises and renders a final decision on how an individual’s real estate, personal property, ancillary transactions, and day-to-day affairs will be handled, distributed or managed.

Think of probate court as an open forum, that functions as a place where those who cannot speak for themselves (deceased, incapacitated or minor persons) may be heard.

What do Probate Courts actually do?  Probate courts are charged with handling a variety of tasks.  A typical probate court in Utah primarily does the following: 1) approve and administer last wills; 2) dispense, manage, and settle estates; 3) appoint guardians for minors and incapacitated adults; and 4) appoint conservators for minors and incapacitated adults.

What are the Disadvantages of Probate?  A probate court can be helpful in some situations because it will set forth a plan of action to settle the issues in an orderly fashion.  However, we have found that the advantages of using a probate court to settle the needs of your loved ones are significantly outweighed by its inherent disadvantages.  Here are just some of the reasons having to go through probate is undesirable:

1. No Control.  You are at the mercy of the court if no valid, controlling legal document exists in advance.  The court will make is own determinations and findings based on what it thinks should happen.  For example, if no power of attorney or guardianship appointment is made beforehand, the court will appoint someone for your loved ones.

2. No Privacy.  All probate proceedings are open to the public.  This means that any decision rendered by the court will be a matter of public knowledge and record.   Anyone may attend court hearings and learn of private details surrounding the estate.  For example, if the court decides to make final distributions in an estate matter, the names of each recipient heir can be viewed or learned through researching court documents and records.

3. Cost.  Probate proceedings are very expensive because attorneys are involved.  It usually costs at least   a    couple thousand dollars just to start a probate proceeding.  Then from there, depending on the nature of the case, costs begin to add up when you consider court filing fees, creditor notice fees, administrative fees, attorneys fees, and other fees for professional opinions.  For an estate case, appraisals may have to be completed and validated.

4. Time.  Even a simple probate case (non-contested with no litigation) takes a long time to complete.  The court’s calendar is very slow, it takes a long time to collect information on the case, and even the “easy” cases take about 9 months to 18 months to complete.  If there are heirs or beneficiaries, they will have to wait until the process concludes before receiving their inheritance share.

Conclusion.  The inconveniences of probate can  be prevented by proper planning, foresight and preparation.  Taking a few hours out of your busy schedule today can save thousands of dollars in court costs and can save your loved ones from the potential nightmares that can arise in a probate case.  With a properly executed estate plan, you’re in control–you determine what should happen to your property, who should care for any minor children, and who may act as your agent in the event of disability –not a court of law.

Utah Family Law Blog