What is probate? and why avoid it?

What is probate? And why avoid it? Avoid probate because it can be slow and expensive.

When a loved one dies with a Will in Kansas you locate the will — hopefully in a safe deposit box or a safe somewhere because the original is going to be filed with the court — you file that will, and petition for probate of the Will and seek appointment of an Executor. Then you publish the proceedings. You are going to publish, at the same time, notice to creditors that they can exhibit claims, file claims against the estate. Most creditors — well, those you don’t know identification and address for — are going to have four months from the time you first publish to file a claim. Anyone to whom you give direct notice by mail, they only have 30 days.

Then the court, through a hearing in the short-term, is going to appoint an Executor: someone to administer and oversee the estate and deal with the Court. That executor, within 30 days of appointment, is to file an inventory of the estate, a list of at least the major assets of the estate. After the inventory, there could be a — if there’s not a lot else to do — there could be a waiting game for claims and sometimes other administration of the estate, sometimes to answer questions of family, deal with maybe tricky assets, tenancies, something that needs liquidated, cattle that need care for. Sometimes as that wraps up and you start dealing with all the creditor claims, you are going to publish again that the estate is going to close. Then close and distribute the estate, with court oversight of the estate. So, this is when you are finally going to get to do what the Will asked be done with the decedent’s assets, and hand those things out. And this was generally at least about a six-month process or more. It could go well over that but for a fairly routine probate proceeding 6 months is a somewhat average, short time I would estimate.

Now let’s contrast that with a Trust.

So with a trust: on the death of a loved one, the Trustee (who was simply named in the Trust document) follows the instructions in the trust, they make distributions if the trust so provides, so they start handing out, paying out, writing checks, conveying things or in some cases it may just be that trust is available those assets to care for the surviving spouse during his or her life. Again this is a simple process: someone dies, the Trustee takes starts making those distributions or using the funds to care for the surviving spouse, there is no publicity, no court oversight. no delay. You can see the obvious advantage of a Trust over a Will. I trust this information may be of use to you. I am Dan Covington. You can find me at EstatePlanKansas.com.

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