I've written several blogs about avoiding probate, including the reasons you should execute an estate plan, the various documents in an estate plan and the general process for getting it done. However, a probate matter may be thrust upon you if a family member has already passed away and left only a will, or even worse, no estate planning documents.
As a reminder, after a loved one dies, their money and property must be distributed to the right people, either according to their will or the state's default distribution rules found in the state's “intestacy” statute (in Illinois, it is the Descent and Distribution Statute). While most people want the settlement process to be done ASAP, probate in Cook County, Illinois generally takes approximately 15 months and, in other jurisdictions around the country, the probate process can take between 18 and 24 months. Yes, you heard that right! These time delays create unnecessary stress, especially for families who really need access to those accounts or property.
Reasons For Probate Taking So Long
There are many reasons why the probate process takes so long but here are five of the most common:
- Paperwork. Managing probate-required paperwork can be a monumental undertaking with structured timelines and court-imposed deadlines.
- Complexity. Estates with numerous or complicated accounts or property simply take longer to probate, as there are more items to be accounted for and valued.
- Probate court caseload. Most probate courts are dealing with high caseloads and limited staff. And now, the court systems have a considerable backlog due to closures resulting from the COVID-19 pandemic.
- Creditor Notification. The deceased person's creditors must be notified of the deceased person's passing and the probating of their estate so they have time to submit any legal claims for debts. In Illinois, this time period is 6 months but, again, it varies from state to state and is generally 4 to 9 months.
- Challenges to the will. Heirs, beneficiaries, and those who thought they'd be beneficiaries, can object to and challenge the will's instructions and legal requirements. While state law dictates the length of the time during which these individuals must object, will challenges can add years to the probate process. Some of the most common challenges include assertions that the will maker was:
- Lacking testamentary capacity (i.e., lacking the legal or mental ability to make a will);
- Subject to undue influence (i.e., wrongful pressure to do something they didn't want to do); or
- A victim of fraud.
The bottom line is that, while most state probate laws are designed to keep the process moving along in a timely manner, that's more of a plan than a reality.
Simply Put, Avoiding Probate with a Trust Is A Better Option
Had the deceased person created a trust to hold their accounts and property, the long, complicated probate process could have been avoided. By creating and funding a trust, those accounts and property are no longer viewed as being owned by the deceased person and are not subject to the supervision of the court. Their distribution is controlled by the instructions left in the trust agreement. Administering a trust instead of a probate is usually much quicker – meaning that beneficiaries receive assets more quickly, costs are reduced, and stress levels are kept to a minimum.
When speaking to clients about incorporating a trust into their estate plan, the main reasons I hear for not doing so are the following:
- Cost. Clients are concerned about the cost but what those clients fail to recognize is that, by not preparing a trust, they are forcing the “cost” of probate onto their loved ones who will have to spend the time and the money to wrap up the deceased person's affairs. And the costs of probate are typically much higher than the cost of incorporating a trust into an estate plan.
- "Not My Problem". Clients will say “why do I care; I'm dead anyway!” Unfortunately, that is a glib remark regarding a very serious subject and I tend to believe most people would not subject their loved ones to probate if they truly understood what those people will have to deal with.
Take Action Now
First, if you need help settling a probate estate, we can help you through the process and remove some of the burden so you can move on with your life. Second, we can help you make sure you never burden your loved ones the way you've been burdened. How? We'll show you how to avoid probate with a trust. Give us a call today! As an added convenience to our clients, we are able to meet via video conferencing, if you prefer.