In the last post, Washington State elder law attorney and Puget Sound Estate Planning attorney Darol Tuttle asked whether probate solved the problem of wealth transfer. In this article, Darol follows up and asks if probate in Washington State should be avoided entirely.
I advise my clients to avoid probate if at all possible. Compared to a criminal trial or a complicated lawsuit for damages, probate is often fairly simple. However, it is a court procedure. It does require someone, usually your surviving spouse or one of your children, to bring a court action after you pass. He or she must pay a filing fee, open a so called “cause number” in court and comply with statutory requirements. Most jurisdictions have strict deadlines for notice to be sent and it is possible the person who has been appointed to act as Personal Representative can be legally liable if a debt is not paid, or assets distributed too early, or to the wrong person.
On occasion, there may be reason to require a probate. Probate is a public procedure. Your Last Will and Testament will be filed in the court record and anyone will be able to read it. In cases in which there are multiple and different heirs from prior marriages, it might be better to require that the decedent’s assets pass with full disclosure and court supervision. This ensures that notice is sent to all potential heirs and all parties have the ability to challenge the appointment of the Personal Representative, the payment of debt or the award of an inheritance.
In most cases, however, the disadvantages of probate outweigh the advantages… higher costs, the potential for unnecessary dispute, the lack of privacy and the investment of time. In future articles, I will discuss techniques to avoid probate, most of which are more cost effective than a probate strategy.