People often come to my office wanting to set up an estate plan that avoids probate. When asked why, they say – oh, well, probate is very expensive and can take years to complete. I don't want my kids to have to go through all of that. The reality is - both those claims are untrue.
What is Probate?
First, it's important to understand what probate is. The act of “probating” a will simply involves the named executor bringing the original will to the county Surrogate (each county in New Jersey has its own Surrogate Office) and signing papers agreeing to become the executor. This is called “qualifying.” Simply being named as executor in a will does not make the person the executor. The named executor needs to take the additional step of accepting that role. In some cases, the named executor will renounce (or refuse) to serve as executor in which case an alternate executor can serve, or an Administrator will need to be appointed if the will does not provide for alternate executors.
Is Probate Expensive?
I suppose this depends on what someone thinks is “expensive,” but the typical filing fee for probating a will is around $100, depending on how many Testamentary Certificates you need. Pretty inexpensive considering the estate may be valued at several hundred thousand dollars. Fees are set by the counties and are not a function of the size of the estate.
Does Probate Take a Long Time?
The actual act of probating the will at the Surrogate's office only takes a few minutes. Where delays come into play is in the settling of an estate, not the probating of the will. Obviously, if there are different types of assets, obligations and estate taxes to pay and several beneficiaries, the process of settling an estate may take several months. However, that's a function of the nature and complexity of the estate and asset holdings. This is all normal and expected when someone dies.
So Why is Probate Given Such a Bad Rap?
The best way to answer this question is with one word: Conflict! Probating a will and settling an estate is pretty simple until someone has a grievance. Once there is conflict over what the will says, or how the will was prepared, or whether the person was competent to sign the will or was unduly influenced in some way, then all bets are off and now the process of settling the estate will be delayed and expensive once the lawyers get involved. But that is not a function of probating the will - - rather, that's a function of the circumstances under which a will was prepared and signed, as well as the particular family dynamics. And if that is the case, similar claims could be made whether the person set up a trust or moved assets to other people outside of the purview of the will.
There are unscrupulous people out there (in many cases lawyers) taking advantage of people's fear of probate and peddling expensive living trusts and fancy estate plans that are unnecessary and a waste of money. Don't be hoodwinked. Do your homework. Work with a lawyer you trust. Probate is not the enemy.