Probate, the court supervised process to distribute assets after a person’s death, is a legal relic — a holdover that traces its roots to feudal law. No other country still has an expensive, time-consuming probate system like ours. Even England, the source of our probate law, eliminated its probate court system in the 1920’s.
But in this country, unless you make arrangements during your life to transfer your property by means other than a will, or have a very small estate, the probate court will oversee distribution of your property after you die. The process is an elaborate, often needless legal dance, full of papers to be filed, notices to be served and published, inventories, appraisals and court hearings. Eventually — usually, after nine months or more — the court orders the property to be turned over to the beneficiaries.
But before beneficiaries get a thing, hefty lawyer’s fees are deducted. Depending on your state, fees can consume 5% – 7% of the property—$25.000 to $35,000 of a $500,000 estate. A study by the American Association of Retired Persons estimated that American lawyers receive $1.5 billion a year in probate fees.
In a number of states like California, where the lawyer charges a percentage of the value of the estate, attorney’s fees are often far in excess of what would be reasonable for the work actually done. Unfortunately there is no requirement that unsuspecting heirs be told that they’re legally entitled to negotiate a lower fee. And even where lawyers charge for probate services by the hour, fees are often scandalously high. Many lawyers bill at upwards of $400 an hour, but turn the actual routine paperwork over to paralegals, who are paid a small fraction of that amount.
Probate’s defenders assert that the system protects beneficiaries by making sure they receive property left to them and protects creditors by making sure they are paid from the estate before assets are distributed. The reality is that very few estates need these alleged benefits. Most people adopt simple estate plans leaving their property to a few loved ones and naming a trusted family member or friend to supervise distribution. And few people have serious debt problems when they die. What debts remain can simply be paid by their named personal representative from the property they leave. For the rare estate with tangled finances or complex legal claims, court supervision can be valuable. But that’s no reason to require all wills to go through probate.
Because probate has become widely discredited and mistrusted, a substantial legal industry has grown up to show people how to avoid probate. People who take the time and trouble to plan ahead can take advantage of a number of ways to leave property without having it go through probate. They can hold property in joint tenancy, put money in pay-on-death bank accounts or establish a living trust. With a living trust, property is usually transferred to beneficiaries within a few days or weeks after its owner’s death. No court proceeding of any kind is required.
You would think the fact that living trusts and other probate avoidance devices, such as the ability to name a beneficiary for IRAs, 401(k)s, and other retirement accounts, have proved to be safe and efficient ways to distribute property free of probate would be all the ammunition needed to do away with probate. Better think again. Estate planning lawyers who originally reviled living trusts, have seized on them as a money machine, sometimes even unabashedly advertising that by using one, people can avoid “the horrors of probate.” The fact that lawyers created probate in the first place, and lawyer trade groups fight to keep it on the books is nowhere mentioned.
People who go to lawyers to have a living trust drawn up may end up paying up front much of the money their heirs would have eventually shelled out for probate. Even a basic living trust for a couple is likely to cost upwards of $2,000. Fees are correspondingly higher for fancier trusts. Enough said, we hope.
What to Do
Some states, notably Wisconsin and Maryland, have made efforts toward simplifying probate procedures. They have streamlined procedures and encourage people to handle probate without a lawyer. California and some other states have created fill-in-the-blank forms for probate paperwork and many states have simplified procedures for transferring small amounts of property or property that is left to a surviving spouse. (Learn about Probate Shortcuts in Your State.)
These reforms, however, don’t go nearly far enough. At the least, probate should be abolished for property left (as most is) to spouses and other close family members. But the better solution is to do away with the entire probate system, as England did way back in 1926.
People who inherit property under a will should be allowed to take legal ownership of it without court supervision. In most cases, putting inherited property into the name of the new owner is a simple process, requiring little or no paperwork—just like transferring property when you’re alive. The fact that this is already done everyday via half a dozen probate-avoidance schemes proves it’s safe and effective.
But what if a will is contested, or other irregularities, such as trying to disinherit a spouse, are claimed? Fine. Court proceedings can and should be available. But because such challenges are quite rare, the vast majority of people would never have to face the stress and expense of a needless court proceeding.