Probate is almost never voluntary. It is compelled. Why is probate necessary, asks Rick Durfee, principal and founder, Durfee Law Group, PLLC?

Mandatory Litigation

When a person dies, it has been a nasty habit of humanity from the dawn of time for people to show up to rip off the dead guy. Dead people have no natural defenses. They can’t fight back. They no longer defend what was theirs. If you want to steal someone’s property, it helps if they’re already dead.

To stop or slow down this sort of plunder, or at least to give the politicians and litigation lawyers first go at it, most societies have developed some kind of system to determine who is rightfully entitled to the property of a deceased person. In Common Law countries such as the US, this has come to be a form of litigation called Probate.

When a person dies, their assets are technically frozen, and no one can take or deal with them unless and until they get a court order authorizing them to do so. This limitation does not always work so well with cash or small items of valuable personal property such as jewelry, but it freezes people out of bank accounts, real estate, and insurance policies.

When a person dies owning property, even when they have a will, a probate is going to be necessary.

Probate Abuses

Probate happens in the court. There are rules and required procedures. It can be complicated and daunting. The shear complexity of the process makes it unavoidably difficult to understand and navigate. This is why an attorney is often not only necessary, but an extremely good idea when navigating the probate process.

Modern probate has many safeguards built in to prevent abuses. Charles Dickens famously chronicled a decades-long probate that gradually consumed the entire estate in legal fees in his highly entertaining book, Bleak House. Today, such abuses are far less likely to happen.

However, even with that, probate is by its very nature adversarial. Heirs, family members, creditors, and interested parties all receive formal notices warning them that if they want to fight, they better fight now or they lose their right to fight forever. The parties will bring these intimidating notices to their lawyer and say, “I don’t want to fight, but I don’t want to give up any important rights either.” The lawyer will happily accept the role of defending the party’s rights for an appropriate fee. When you get multiple parties, each represented by their own legal counsel and each having a different opinion about how things ought to go, what are the odds of spending a lot of legal fees on a fight?

Don’t Be Stupid—How to Keep Probate Fees at a Minimum

In decades of representing clients in probate proceedings, we have seen many situations where the lawyers an all sides of a conflict tell their clients that it is not worth it to fight and that they should come together and settle. Sadly, too often people disregard this counsel. Sometimes probate fees will be high just because of the amount or complexity of property and people involved in a probate, even when everyone is playing nice. However, the number one way that probate fees can be reduced is to politely and kindly do the right thing and work together to resolve any potential conflicts.

It’s That Simple—Don’t Fight

Some years ago, I worked with a beneficiary who was entitled to a significant part of a substantial estate. The inheritance was badly needed and would be a great blessing to the beneficiary. As the family dynamic unfolded, this beneficiary walked away from the inheritance. The money was taken by a sibling that needed it far less than my client but was greedy and power hungry. I asked my client, why not fight for what is rightfully yours? The client said, “I would rather have a sister than the money.” These were words of wisdom.

How people handle the transition of wealth from one generation to the next reveals who they really are.

Probate Is Avoidable

Probate can be avoided. However, it requires planning in advance, while you are still alive. Legal structures like beneficiary designations on financial accounts, beneficiary deeds, trusts, and other documents, can completely prevent probate. Because most people still don’t take such initiative, probate will continue to be a necessary and unavoidable part of transferring assets from one generation to the next.

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