What is Probate?

One of the most common promotional schemes for "estate planners" is to tell people that they must avoid probate. A Google search on the term "avoid probate" comes up with 179,000 hits. To understand why this phrase is used so often it is necessary to understand what is a probate and also some history.

In the early 1960s, Norman F. Dacey wrote a book entitled, "How to Avoid Probate." The book was an instant best seller and rose to No. 1 on the New York Times best-selling nonfiction book list where it stayed for 47 weeks. Since that time, numerous so-called estate planners have copied the title of the book to sell their products, to a mostly unsuspecting and unknowledgeable public. The idea of Mr. Dacey's book was that people could put their money in a trust and avoid the abuses and fees associated with the probate practice in the United States. The reason the book was such a success is that most probates, at that time, were handled on a percentage basis. Even if the probate was relatively simple and uninvolved, the heirs could end up paying a sizable percentage of the entire estate just to have a few formal papers signed and filed with the Court.

Those days are mostly, but not entirely, gone. In 1972, Arizona, along with many other states, adopted the Uniform Probate Code. The UPC, as it is sometimes called, simplified the process of transferring property upon death. Since that time the abusive probate practices and the outrageous attorneys' fees have been greatly reduced and partly eliminated.

Probate is nothing more or less than a way to determine a deceased person's heirs and transfer the decedent's property to them. Absent a contest by one or more of the heirs, the process, though somewhat complicated, now takes a reasonable time, about six months or more, and can often cost less than the expense involved in setting up an estate plan. (More about the costs of probate in future posts).

If you have a real reason for avoiding the probate process, I can certainly help you formulate an estate plan, either simple or complex, to assist you. But before spending a lot of money on a complicated estate plan be sure and have your needs evaluated by a professional and not a salesman. Please call with any questions.