Lally Law Blog

Frequently, with regard to Estate Planning, you will hear the words "avoid probate". To the consumer, it might cause you to envision some horrible legal procedure that must be avoided at all costs, or it will bring ruin upon your heirs after you pass on.

I was talking with a colleague the other day, and the discussion was: "Is probate really all that bad?" After all, the law wouldn't require a probate process unless there was a need or a use for it, would it?

So let's talk about what probate is, why we do it, and why we might want to avoid it.

What is Probate?

The word "Probate" simply means a procedure in which a judge determines the validity of a will. However, the term is sometimes used to encompass the entire process of qualifying and recording a decedent's will (if any), appointing a personal representative (executor or administrator) and administering the decedent's estate in court. In Kentucky, it is a formal, legal process that takes at least 6 months to complete.

What does it mean to "avoid probate"?

This generally means planning one's affairs so that the decedent's assets can be distributed shortly after his death without the necessity of going through the legal process described above.

Is Probate bad?

The process of probate isn't necessarily a bad thing. In probate court, the decedent's will becomes a public record. It is recorded in the County Clerk's office alongside deeds, mortgages, and other public documents. Any member of the public can walk in and look at it. Likewise, the personal representative will need to file an inventory of all assets with the court and will have to publicly account for all expenses of administration and disbursements. The Court will set a bond in the value of the estate assets to protect all interested parties, and the court may require the personal representative to have a surety on the bond. In other words, a pledge of property or an insurance policy might be required to protect claimants from misfeasance or malfeasance of the executor/administrator.

Why is this important? Lawyers get several panicked telephone calls every year from relatives who have lost a family member and "have no idea what's going on with his property", or "everything is being kept secret from me", or even "I think my [relative] is stealing things from the estate".
Sometimes family relations are strained to a point of distrust. Sometimes the widow will have been a second spouse who is not the mother of the decedent's children, and there is disagreement as to who should get what from the decedent's estate. Sometimes, everybody gets along with each other, but transparency and openness help to ease anxieties.

Probate court and its governing laws are designed to be transparent.

• Do you think the Executor is hiding assets? The estate inventory is a public document. You are entitled to look at it and verify.


• Do you think you were supposed to get a distribution from the estate? You can look at the will and see if you are in it. You can even contest the will if you think something shady happened in its making.


• Do you think money has been misspent or misappropriated? Periodic and final settlements have to be filed with the court, and can be viewed by the public. There is a bond securing the Executor's performance.


• Are you unsure of whether there are creditors "out there" who will come looking for payment? Creditors and claimants are given 6 months to claim what's owed to them. If they haven't done so, they are barred, and you can safely distribute the remaining assets of the estate to the beneficiaries.

If probate is so good, why would you want to avoid probate?

Frequently, I will have a widow call my office and say that her husband had one asset... maybe an account, a vehicle, a stock certificate or something else, that was in his name only. Everything else owned by the husband was co-owned by the widow and remained in her ownership after his death. In those situations (with some exceptions I will talk about in another post), we have to go to court to get those assets titled or registered in the widow's name. It could be an expensive and burdensome procedure to secure an asset that everyone knew should have been the widow's property in the first place.

This is just an example. There are many reasons why people want to avoid probate.

• Probate can tie assets of the estate up for a minimum of 6 months, and in some cases for several years.


• Court costs and attorneys' fees related to probate can be expensive and eat into the heirs' inheritance.


• The paperwork and reporting to the court can be complicated.


• Some people don't want their estate to be a matter of public record. For privacy's sake, they wish to avoid publishing the will, the inventory of assets, or the settlement.


• The transparency of the process, noted above, might cause or escalate family disagreements.

What should you do?

Make an appointment to see me, and we will discuss options that are right for you. There are some commonsense things that you can do now to avoid probate court in the future without investing in a trust. I would be happy to walk you through these options. If a Revocable Living Trust is right for you, we can set you up with one. If you think a Will is right for your circumstances, we can provide one of those for you as well. We offer a free 30-minute consultation, so you have nothing to lose by talking to us.
Lally Law Office PLLC
(502) 896-4529

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