Top Five Misconceptions about Probate
There are a lot of questions and misconceptions floating around about the probate process. Have you ever wondered why a will has to be probated? Is probate an expensive mess you should try to avoid? Do you need a will at all? Is the reading of the will as dramatic as it looks in the movies? Today we tackle these common questions about the probate process.
If there is a will, we don’t need to probate it; just showing the will is enough to prove my authority as executor.
The word “probate” is from the Latin word probare, meaning “to test or prove,” and when you offer a will for probate, you are asking a court to make a formal finding that the will is, in fact, the valid last will of the deceased person. Only once the will has been admitted to probate does it have legal effect. Third parties cannot rely on an unprobated will, because they cannot know if it was validly executed or whether a later will may have supplanted it.
Also, the nomination of an executor in a will is just that: a nomination. Only after finding the will valid and the nominee qualified to serve can the court grant letters testamentary to an executor. Third parties generally will not talk to someone purporting to be executor until the person presents letters testamentary to prove their authority.
Probate is very expensive, takes a long time, and should be avoided.
The probate process has a reputation for being expensive and difficult. This reputation may be well-earned in some states, but not Texas. In Texas, with a properly drafted will, uncontested probate is typically fairly quick and cost-effective. Of course, where there is conflict, the potential for higher costs goes up, but a well-drafted plan may anticipate and help prevent conflict.
If you have a trust, you can avoid probate.
In theory, this is true. If you have a revocable trust set up during your lifetime, and you transfer everything you own to the trust, it is possible that you may have no property that would pass through probate. In practice, I’ve probated a lot of wills where a trust-based plan had failed to account for one or two assets. Even if 99% of your assets were funded into the trust, it only takes one being left out to necessitate probate. Trust-based planning offers many benefits, but probate avoidance should be viewed less as the goal of such a plan and more as a possible side benefit.
I don’t need a will if I’m fine with my property passing according to state law.
Even if your property would pass as you wish in the absence of a will, a well-drafted estate plan can ensure that your property passes more efficiently and with greater flexibility to account for circumstances than the absence of a plan.
For example, let’s compare what probate looks like with versus without a will for our testator, Terry. Suppose Terry is married to Chris and they have one minor child, Robin, together. If Terry dies without a will, Chris may need to seek a judicial determination of heirship to prove that Chris and Robin are Terry’s sole heirs at law. And because Robin is a minor, Robin’s share of the estate will be subject to court oversight during minority and then, upon turning 18, Robin will receive the property outright.
Now, imagine instead that Terry had a will leaving everything to Chris and Robin, naming Chris as independent executor, and providing for a trustee to manage Robin’s share until Robin is 25. Chris offers the will for probate—a process far easier and cheaper than seeking a determination of heirship. Then, as executor, Chris is able to administer the estate effectively without the need for costly court oversight. Robin’s share is held in trust, not only until age 18, but until a later age Terry chose when Robin may be more prepared to manage money.
The end result is a process that is much quicker and cheaper than the determination of heirship and administration that would result without a will, while also providing for greater flexibility on the timing of distributions. As these examples show, the cost of not having an estate plan can be high, even where the end result is the same.
There will be a reading of the will in court, or at least in the probate lawyer’s office. All those movies and tv shows can’t be wrong!
If I had a dollar for every time people asked me about “the reading of the will,” I’d have many dollars! Alas, the reading of the will is a thing that only happens in movies. The will is not read aloud in court when offered for probate (good thing too, as some of them are 20+ pages!). A typical court hearing for the uncontested prove-up of a self-proving will takes 10 minutes or less and the will itself is only briefly reviewed. It is also not standard practice for the probate attorney to read the will aloud in the office as the family crowds around to learn the decedent’s wishes. It makes for good entertainment, but in practice, reading the will is more private activity than spectator sport.
If you have more questions about the probate process, I’d be happy to discuss it with you and hopefully shed a light on any areas of confusion you may have.