“I need to avoid probate!” I can’t tell you how many new estate planning consultations begin with questions relating to the belief that it is important to avoid the probate process. Clients desiring to avoid probate often ask for a complex and costly estate plan. When I first started practicing, I couldn’t figure out where this fear came from. But a quick search of the internet provides some insight. Countless articles, books, and lectures tout the importance of avoiding probate like it is some poison laced process that only the strong survive.
Where does this come from? I think it is a combination of people not knowing what probate actually is and the fact that the probate process is state specific leading to further misunderstanding and misinformation. Each state determines what will be involved in the probate process. Some states have made probate close to a poison laced process that will make Executors think twice about dying themselves. Thankfully, Pennsylvania makes the process relatively straight forward and fairly painless when you know what to do.
So what is probate? Probate is the process by which assets passing through the Will are collected, debts paid, taxes filed, and the remaining assets are distributed. It does not apply to those assets that pass by beneficiary designation or by law. When things run smoothly, the probate process can take less than a year. Wayward executors, unruly beneficiaries, poorly drafted wills, or assets that are not easily converted can slow the process.
Are there reasons to avoid probate? Of course! But those reasons need to be carefully considered and weighed against the cost of avoiding probate. When someone meets with me intent on avoiding the probate process, I first find out why. Then we explore whether that will really meet the clients goals. A more complex approach to an estate plan is necessary in some situations but it is not important for all clients to avoid the probate process in Pennsylvania.