Is probate really that bad?
Is probate really that bad? Let’s unpack this question.
I have met a lot of clients who say, “We definitely want to avoid probate. That’s just too time consuming and expensive.” This is not really the entire story. This is why estate planning is not a “one size fits all” process.
There is still an estate planning myth swirling around quite rampantly. The myth is: “There will not be a probate administration of my estate because I have a will.” The truth is that there may be some situations where dying with a will means that there will not be a probate administration. Generally though, there must be more planning than having a will to avoid probate. If it makes sense for the client, the additional steps to avoid probate are part of my estate planning process.
Avoiding probate does not always make sense for the client. For instance, there are some situations where probate makes sense. Let’s say that a couple meets with me and they plan to leave their house to their two children after they die. Both of their children are married. Under current Ohio law, there is a method to transfer that house to the children outside of probate court. There is a competing consideration though.
The competing consideration occurs when a married person acquires Ohio real estate. No matter how a married person acquires Ohio real estate, that person’s spouse acquires a partial interest in that real estate. So, let’s go back to my hypothetical couple that wants to pass the home to the children after their deaths. We’ll say that the children decide that the best course of action is to sell the house. Since both children are married, both children and both spouses must sign the deed to transfer that property to the new owner.
That process might not be a bad plan now. But if one of those kids’ marriages sours, a spouse might refuse to sign that deed. What do you have then? A headache.
What was the other option? If the will allows the executor to sell the home, the executor does so as part of a probate administration. The proceeds get from the sale of the home get distributed among the children. No spousal agreement required.
While the first situation avoided probate, it created other challenges. Estate planning is different for every family dynamic. Contact me to create a plan that makes sense for you.
