If you use a simple will to record your final wishes, you name an executor to act as the administrator. This person would not be able to follow the instructions and distribute inheritances to the beneficiaries independently.
The executor would be required to admit the will to probate, and a court would preside during the proceedings.
Is this a good thing for the rightful inheritors?
In this post, we will explain what happens during probate and then we will then answer this question.
Proving of the Will
The court will examine the will to determine its validity when the probate process is initiated. If anyone wants to contest the will, they could present an argument during probate. Acceptable grounds would include the incapacity of the testator, coercion, intimidation, fraud, and improper execution.
Creditor Claims
Creditors of the decedent are given an opportunity to come forward seeking satisfaction before the estate is distributed to the heirs. This is usually done through the placement of a notice in the newspaper.
In South Carolina, they are given eight months from the time that the notice was posted to file their claims.
Preparing Assets for Distribution
During probate, the executor will identify and inventory the assets that will comprise the estate. They must be prepared for distribution, which means that appraisals and liquidation may be necessary.
Probate Drawbacks
All of the above sounds reasonable enough on the surface, but the final result is not necessarily going to be positive for the rightful heirs. The waiting period for the creditors is a considerable amount of time, and no inheritances can be distributed until the estate has been closed by the court.
In addition to this part of the equation, the process of identifying, inventorying, and preparing the assets for distribution can also be time-consuming.
Expenses are another probate negative. The executor is entitled to payment for their time and trouble, and there is a filing fee that must be paid to the court. In many instances, a probate attorney will be engaged along with the tax accountants, so there are professional fees.
There could be appraisal and liquidation charges, and the executor will invariably incur some incidental expenses. All in all, these expenditures can noticeably reduce the value of the estate.
A scurrilous will challenge would be another potential drawback that would add to the time consumption. Probate records are available to the general public, and this loss of privacy is yet another source of concern.
Can Probate Be Avoided?
If you do not like what you learned about probate, there are steps you can take to avoid it so that your loved ones do not have to put up with these hassles. The most commonly utilized probate avoidance tool is the revocable living trust.
You don’t have to be scared away by the term “trust,” because you would retain complete control of the assets while you are living. After your passing, a trustee that you name in the document would distribute the resources to the beneficiaries outside of probate.
The avoidance of probate is just one of the many benefits that living trusts provide. We will look at this subject in more detail in a future blog post.
Attend a Free Webinar!
We are conducting a number of webinars over the coming weeks that will cover some very important estate planning and elder care topics. There is no charge, and you don’t have to go anywhere to join us, so you should definitely take advantage of one of these opportunities.
You can see the dates if you visit our webinar page, and if you decide to attend, follow the instructions to register so we can reserve your spot.
Need Help Now?
As you can see, there is no reason to settle for a simple will when there are better options available. You should explore all of the possibilities and make fully informed decision when you are preparing your legacy for eventual distribution to your loved ones.
If you are ready to put a custom crafted plan in place, we are here to help. You can schedule a consultation at our Bluffton, SC estate planning office if you call us at 843-815-8580, and you can use our contact form if you would like to send us a message.
Hunter is a member of the South Carolina Bar Association, the Beaufort County Bar Association, and has served on charitable and advisory boards in the Bluffton/Hilton Head area.
Hunter graduated from Hilton Head High School. He then earned his Bachelor of Science Degree in Economics from Clemson University, in Clemson, South Carolina.
Hunter graduated Cum Laude from Regent University School of Law in Virginia Beach, Virginia, having earned a Juris Doctor Degree. He also wrote his doctorial thesis on Estate Planning Dynasty Trusts.
Hunter has called Beaufort County home for since 1984, where he lives with his wife and two children.In his spare time he dabbles in automobiles, reading history, hunting and fishing.
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