Probate: The Good, The Bad and The (Not So) Ugly
A few months ago, I blogged about Estate Administration in which I touched on a number of methods in which a deceased person’s property can be transferred to the rightful recipients – trust administration, transfer-on-death beneficiaries, and, of course, the dreaded “probate.” The conjuring of the term “probate” is enough to make most people scream and run in terror. Frankly, I am not sure if there is a term in the legal world that has a more negative stereotype (even among attorneys). This is quite a feat! While probate can be intimidating, a bit annoying, possibly cumbersome, and even potentially a real drag, it is probably not worthy of its lofty status as the monster-under-the-bed of the legal world.
To get a picture of probate, I did what any good, modern attorney would do: ask ChatGPT. I was actually quite pleasantly surprised by its answer: “Probate in Oregon is a legal process that occurs after someone’s death to administer their estate. It involves validating the deceased person’s will, if one exists, and distributing their assets according to the will’s instructions or state law if there is no will. The probate court oversees the process and ensures that debts, taxes, and expenses are settled before distributing the remaining assets to beneficiaries.”
Never have I been so satisfied with a soulless electronic being’s thoughts! So basic and to the point without pontification about an emotional nature of some underlying darkness. In fact, once you strip away all the hoopla and preconceived notions, probate suffers from much more vitriol than it really should (this could probably be applied to many other things as well). At the end of the day, like pretty much everything else that exists, probate has some good and some bad – and a lot depends on the circumstances and how it is used.
The Good: Yes, probate requires a filing in the local court system. This may seem a bad thing on its surface, however, ChatGPT sums up a number of ways in which probate can be good: validation of a will, distributing assets in accordance with a will or state law, overseeing the process, and ensuring payment of debts, taxes, and expenses. In essence, the reason for the process is to make sure that things go as they should! Death is serious business that can lead to a number of negative consequences, including family in-fighting, creditor issues, people running off with assets that do not rightfully belong to them, among others. Because we are dealing with the wishes of somebody who is no longer available, having the court oversee the process to make sure that it goes according to plan is not necessarily a bad thing!
The Bad: Okay, so there are a few things that can be negative about probate. It is a public process because it goes through the court system meaning that snoopy people can keep tabs on things. Generally, this means that you may get a few calls or unsolicited mailings from realtors trying to sell your house – so it’s not all that bad. It takes some time to get through the basic process (a minimum of four months to get through the creditor claims period) and certain courts (usually more urban ones) can take their sweet time in processing paperwork. However, estates that are administered correctly often do take 6-12 months even if they are outside of probate. Cost can also be an issue as there are court costs such as filing fees and time and work do incur attorney fees. However, these are generally a very small percentage of the overall estate value (0.5-1% on average). See, the “bad” is not that bad!
At the end of the day, probate is very circumstantial. If a decedent was well organized, had a will, appointed a solid executor, has a family that gets along and lacks significant creditors, the process can be a breeze. If a decedent lacked a will and their family is likely to get into an all-out brawl of “mom liked you best!” then it can be a bit more of a challenge, though, it can be nice to be within the court’s purview for those issues in any case!
I have been handling probate cases for over a decade and have seen the scale from one end to the other, with no one probate being the same as another. There are good ones and there are bad ones, but the process is not that ugly.