Why avoiding Probate is not always a good idea

Since I began practicing law, lawyers, insurance sales people, brokers and financial advisors have all trumpeted the phrase, “You should avoid Probate.”  Most of them add the phrase, “at all costs.”  However, if you live in Texas, this is not necessarily true because Texas has simplified, inexpensive probate processes that give the assurance of finality without the traditional costs, waste, of formal Probate.  For this reason, it is not automatically a good idea to avoid Probate.

Moreover, in most situations there are debts to be paid or settled after death.  These days, more and more, there are even credit cards and mortgages to contend with.  Probate Court gives survivors, spouses, children, an official, regulated, binding forum in which to deal with debts and clear up the title to properties that cannot be reviled outside of the official Probate process.

Of course, for tax, benefits planning, and other reasons, there may be assets that advisors will want to keep out of the Probate process.  But a decision to form a trust, transfer assets, or take other “probate avoidance” steps should be made with care.

This article is written by an attorney at Wyatt & Mirabella, PC. Always consult an attorney before making any legal decisions. To make an appointment today for a free consultation, please click here to contact us.