A common topic in the estate
planning world is the concept of "avoiding probate." While doing so
is a good idea in many cases, probate isn't necessarily a bad thing. When
considering your estate plan, it's important to look over the pros and cons of the
probate process.
Advantages of probate:
- Oversight by the court. Probate is governed by a set of enforceable rules based on established law, to help make sure your assets go where they should. This is an important consideration if there may be conflict among your beneficiaries.
- Determining debts owed by the estate. Probate requires the personal representative to identify and give notice to legitimate creditors, thus providing more certainty of the estate's financial liabilities.
- Transparency. The probate court requires that written notice be given to your beneficiaries to keep them apprised of what's happening in the estate administration.
- Fair appraisal of assets. The court can approve the appointment of independent appraisers so that property is correctly valued.
- Protection from dubious creditor claims. The court will enforce limits under Minnesota law as to how much time a creditor has to pursue a claim against your estate. The laws relating to creditor claims can be complicated and are fact-dependent. Having the court set the rules can be helpful.
- Probate can be informal for some estates. Minnesota allows an informal probate process that does not require court supervision. This may be appropriate for estates without uncertainties, legal disputes, or complex administrative requirements.
Disadvantages of probate:
- Probate can be expensive. There are court costs, attorney fees, personal representatives' fees, and other expenses. Still, probate expenses may end up being less than the cost of defending against a Will contest or unfounded creditor claim.
- Probate can be time-consuming. Administering an estate in probate may take a year or more, depending on the complexity of the estate and whether there are conflicts among beneficiaries or claims from creditors.
- Public knowledge. Probate is a public process, and as such, your Will becomes a matter of public record. Your estate plan is available for anyone to look up. This could give unknown creditors an opportunity to make claims against your estate.
Regardless of whether your estate will be probated or not, having a valid Will is an important tool for your estate plan. Consulting a qualified Minnesota
estate planning attorney is the first step in protecting your hard-earned
assets for the future of your loved ones.