#1 Expense – is the biggest drawback to probate court.
The probate estate is subject to probate fees that are payable to both the executor and the attorney for the estate. Those fees are regulated by state statute and are a fixed percentage of the assets in the probate estate in some cases. In most cases, the executor’s fee is not an issue because the executor (usually a family member) may elect to waive his or her fee. However, that is rarely the case with the attorney’s fee and depending on the value of the estate the attorney’s fee can equal or even exceed the statutory executor’s fee for probate. In many estates, the assets in the estate must be appraised by an appraiser which becomes the basis for the statutory fees. This too will cut into the heir’s inheritance.
#2 Delays – probate involves a series of steps and waiting periods that must be completed sequentially the entire process can take a year or longer before a simple estate is settled.
For example, there are tasks that must be completed even before the Will, if there is one, can be admitted to probate, such as finding the Will; hiring an attorney; notifying beneficiaries named in the Will that it will be probated; identifying assets and more.
Once all of that is accomplished the Court typically issues a Letter of Authority to administer the Will so that the executor or administrator can gain access to the decedent’s bank accounts, and deal with all estate administration matters. From there, the creditors are given an opportunity to file their claims against the estate, which is usually six months.
Then, after the creditors claims have been resolved, taxes paid, assets appraised, then the executor normally files a final accounting with the court and the Court will issue an order authorizing the distribution f the estate assets to the intended beneficiaries.
Now for more complex cases, it is even longer due to the fact that there is may be numerous beneficiaries required to approve the inventory accounting and appraisals.
#3 Paperwork hassles – Probate involves a lot of paperwork that normally requires an attorney’s assistance to complete and file with the court.
There are petitions, notices, appraisals, accountings, creditor claims, and other paperwork that can result in case files several inches thick. The more complicated the estate happens to be, the more paperwork it will entail to deal with the assets, the creditors, and the beneficiaries. If there are any problems, such as a Will contest or other litigation, this Will only add to the paperwork hassle and further delay disbursement to the beneficiaries.
#4 Publicity – Probate is a public proceeding. Any probate filing in the courthouse is a matter of public record and available for public inspection.
This means that all the assets and liabilities of the probate estate will become a matter of public record. All beneficiaries of the estate and what they are to receive will become a matter of public record. The appraised values of the assets are a matter of public record. Anyone who wants t can go to the county courthouse and ask to see the probate file and get photocopies of what is in the file unless the Judge orders certain information to be deemed “confidential” like social security numbers.
Consider a case that we handled were there only assets were a car valued at $6,000 and $8,000 dollars in a bank account. In this case, there were co-executor both of which had their own attorney and the two executor’s didn’t get along. So, there was a lot of litigation over the assets of the estate. In the end, between the attorney fees, cost of appraisal, and court costs, the executors had to waive their fees or the estate would have been insolvent. In this case, they agreed to waive their fee, but we’ve heard of cases where they didn’t which resulted in an insufficient amount of money to pay the creditors and a minimal fee for the executor. Let's avoid Probate together.