Why Avoid Probate?
Aug 17, 2017 Posted by Richard Chamberlain

Almost everyone we meet with for estate planning comes to us wanting to avoid Probate. Some of those people have been through the process with the estate of a loved one. Their experience in the Probate process gave them the background to understand that they want to keep their own estate out of Probate. Other people have no prior experience in probate, but they've been told that they should avoid Probate. This article gives more of an explanation on the Probate process and why you should avoid it.

There are generally four main reasons why people want to avoid probate (we call them “The Pitfalls of Probate”)

1.) Expense – Probate can be a very expensive process. The legal fees to be charged are based upon the value of the assets in the probate estate, and start around 4% of the first $100,000 of probate assets (that's a $4,000 fee on a $100,000 estate). Take a look at the Lucas County, Ohio Probate Court Computation of Attorney Fees form and the Wood County Probate Court attorney fee computation form for examples of how the fee is calculated.

2.) Privacy (Lack of) – Probate is a public process, so any person can look at the information in a deceased person's probate court file. This may not seem like a big deal, until you realize what information is there:

• Names and addresses of the relatives of the decedent, as well as any other named beneficiaries, plus the birthdates of any relatives or beneficiaries who are minors. • Specific information on all assets owned by the decedent, including account numbers and balances and appraised values of assets like real estate and cars. • Detailed information on how the estate was distributed – including who got what and how much.

3.) Protections (Lack of) – The probate process is designed to have a person's estate be administered and then closed as soon as possible. Assets are distributed from the probate estate to the beneficiaries from the probate estate, and from that point the beneficiaries are “on their own” to make good decisions about how to invest, save and spend the assets. If there are special circumstances, such as a beneficiary with creditor problems, or one who is a spender, or one who is just inexperienced or too young to handle an inheritance, the probate process does not allow for the inheritance to be given to them in a way that will protect them.

4.) Multiple Probates – If you have property in states other than Ohio (such as a cottage in Michigan or a condo in Florida), you would have to have a probate proceeding in Ohio, and then have another probate in the other state as well. Also, if you have beneficiaries under age 18, then your assets would pass through your probate estate into a Guardianship for them (another probate proceeding – see Avoiding a Guardianship of the Estate).

When people have more information on probate, they generally look for ways to design their estate plan to keep their estates out of probate. For most people, a Living Trust is the best and most effective way to avoid probate.

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Richard Chamberlain Richard M. Chamberlain is the founder and principal attorney of the Chamberlain Law Group, Ltd. and is a member of the Ohio State Bar Association section on Estate Planning, Trust and Probate Law. He has an undergraduate degree in Economics, magna cum laude, from Tulane University (1989) and received his law degree from Florida State University (1992), where he was a member of the Law Review. Richard was born in Port Sulfur, Louisiana (about an hour south of New Orleans – yes, there is land an hour south of New Orleans) in 1967. When he was 3, his family moved to Baton Rouge, where they lived until he was in college at Tulane University in New Orleans. After graduating from Tulane, Richard attended The Florida State University College of Law in Tallahassee, Florida, where he earned his law degree in 1992. While practicing law in Tampa, Florida, Richard met a beautiful girl named Kelly Sancraint (a transplant originally from Toledo, Ohio). They were soon married, and as they began their family, they made the decision in 1998 to move back to the Toledo area to be near family. Richard founded his own law practice (“The Law Office of Richard M. Chamberlain, Ltd.”) in Perrysburg, Ohio in 2007, focusing on the practice areas of estate planning and estate administration, business formation and planning, elder law and real estate law. In 2012, with the addition of his first associate attorney, the name of the firm was changed to “Chamberlain Law Group, Ltd.” Richard is a member of WealthCounsel, a cooperative alliance of nationally recognized estate planning attorney members from across the country. as well as being a member of The Rotary Club of Perrysburg and the Perrysburg Chamber of Commerce. Richard also serves on the Board of the Perrysburg Schools Foundation, and he serves in several ministries at CedarCreek Church. Richard and Kelly have 4 daughters, 1 son-in-law, and 1 granddaughter, who keep them both very busy with their varied interests.