What is probate and why should I avoid it?
Minneapolis, MN estate planning attorney Cameron R. Kelly discusses the concept of probate and why it’s best one avoids it if possible.
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You know that’s a question we get asked a lot is or when people come in one of the concerns they raise is I want to avoid probate. And I think as a profession that attorneys have done a pretty good job of marketing probate avoidance as a reason to do estate planning. I think there are a lot of reasons to do estate planning outside of just probate avoidance. But a probate is a court proceeding where you will send a petition to a judge or to the court and ask them to appoint someone or appoint you to take care of someone’s estate.
And the process of going through a probate can take months or even sometimes years. There’s a notice period during a probate that takes four months in itself and so before that you’re setting up and getting these documents filed with the court but then you have to notify people who might have an interest in this estate and that takes four months. So you can see just with that notice period things can get long pretty quickly.
What you do in a probate is you collect all the assets for the estate and you notify all the people who might have an interest in them. So that would include creditors of the estate but it would also include people who might be beneficiaries like children or people who are named in a will. And then after you’ve gone through that notice period then you can go ahead and distribute the assets to the people who are entitled to them. And so paying off bills and then distributing property to a spouse or to children or grandchildren at that point.
All told, with that taking nine months to a year and a lot of times having to hire an attorney to do it some people will opt to use a trust instead of using probate process. And with the trust most of the time we can avoid needing to do a probate in the first place.