Why People Avoid Probate

After Jerry Garcia passed away, his guitars went to Douglas Erwin (the same person who made them). Why would anyone know these personal details? Because he created a will, and they are public. If anyone were inclined to do so, they would be able to read it in its entirety.

Before we continue with some common reasons why people try to avoid probate, you should understand how an estate gets there. When you create a will, in New York, your assets pass through Surrogate’s court. The court determines if there is a valid will and ensures there is an executor amongst other administrative procedures. For those who forego any degree of estate planning, their assets get distributed according to the laws of intestacy, (a State statutory scheme). These people are said to have died intestate.

That doesn’t mean you shouldn’t create one—because they are an excellent estate planning tool. However, you need to determine whether the public nature of a will is something you wish to avoid.

Two Common Reasons

In addition to being public, there are two common reasons people craft their estate plan so that it won’t pass through probate: time and money. Each estate is different, so there isn’t a set amount of time they last. Additionally, no matter how well crafted, a Will is always subject to be challenged. When people contest a will, the probate process could take years. Even if a will goes unchallenged and there are minimal complications, you are still looking at several months before the Will is approved, and that depends largely on the backlog within the Court.

In terms of money, look at the value of an estate in terms of gross and net. The gross value of an estate is how much it is worth before paying the deceased’s debts, funeral expenses, and probate fees. Net is how much remains when that is over. The probate fees come out of the gross. There are also circumstances in which minors are involved in the probate process because they have been identified as beneficiaries. The court could assign an attorney to represent the minor, and the fee for the attorney comes out of the estate as well. Of course, a well-crafted Will and Estate plan takes into account any gifts to minors and plans accordingly.

Drucker & Mattia, PLLC

A will is still a very valuable estate planning tool, but that doesn’t mean it fits everyone’s needs. Creating a trust is ideal for those who wish to safeguard their privacy while also protecting their assets. Though there are multiple types of trusts, the attorneys at Drucker & Mattia can explain each how and how they cater to your needs. Contact us today to schedule a free initial consultation.