What Are the Top Misconceptions About the Probate Process?

The top misconceptions about the probate process usually revolve around how long the process takes, how much of the estate is used up in fees, and when exactly someone needs to enter the probate process.

The probate process is the process whereby a will is shown to be valid. Furthermore, once the will is deemed valid, it will be distributed. While this process sounds straightforward, it can become quite complex.

The point of probate is to ensure that the will is valid and that the assets therein get distributed properly.

It is a common misconception about the probate process that it takes a short amount of time. Moreover, there are also some who think it may take decades. Both are misconceptions. Usually, the probate process will take around a year or a little more to complete. While it can take shorter or longer based on certain circumstances, this is the timeframe you should plan for.

It is a common misconception that the probate process is so expensive that the estate will be drained and be essentially worthless at the conclusion of the probate process. However, this is not true. Most probate is only for the assets solely owned by the deceased. Furthermore, the overall deduction of cost is usually only around 5%, which is a small fraction of the value of the estate.

No, you cannot skip the probate process. This common misconception gets asked all the time. A will does not excuse one from partaking in the probate process because all wills must go through the probate process to validate them.

Yes, it is a common misconception to choose a trust over a will. These two legal documents are different from each other, though they can work together. One is not necessarily better than the other. It comes down to your specific situation. Consulting an attorney is the best way to decide which you choose.  

While it is not required to have a will, it is highly recommended to have one. A well-written will ensures your assets are distributed properly upon your death.

It is a common misconception that you can use any type of lawyer to help with the probate process. This is not true. There are lawyers who specialize in probate and should be used because they have extensive experience and knowledge of the probate process.

Yes, many people think that if a will is unfair that the judge can “correct” this. This is not true. A will cannot be altered, especially if it is a valid will as found by the court.

Yes, this is a misconception. If you have a testamentary trust, you will still need to enter the probate process for the will of the deceased because a testamentary trust is not a living trust and is located within the will.

Yes, you can use a trust and a will at the same time. It is a common misconception that you can only use one or the other.

A will and the assets therein are considered public. Therefore, anyone can request them. It is a common misconception that these documents are private when they are not.

Yes, the probate process will not save you taxes.

No, the probate process does not avoid disputes of the will. Moreover, one of the reasons the probate process can take longer than anticipated is because of disputes. Lawyers usually must help settle these disputes. Disputes can happen between the beneficiaries, fiduciaries, and the heirs of the estate. It is quite common for this to occur.

Yes, this is not true. If you die without a valid will then you are considered intestate. When this happens, state law takes over. Usually, the estate would be distributed to the spouse and/or children of the deceased. Property will only go to the state if no living family member can be found.

The oldest child of the deceased is not automatically considered the executor in the probate process. Many times, the deceased has already named an executor. If they did not, then the court appoints one. However, they do not consider the order of the children a deciding factor.

Even if the spouse is not included in a will, this does not necessarily mean they will not inherit anything. During the probate process the spouse of the deceased can “elect” against the will. This law varies by state, but if this is allowed the spouse can inherit, sometimes, up to one-third of the estate.

No, a spouse does not have to accept what the will grants them.

Yes, this is a common misconception of the probate process. Many think that it is a straightforward, simple process. However, many complications can arise. These complications make it complex and leads to the process taking a considerable amount of time to complete.