The most common question I am asked is:  “I thought that if I have a Last Will and Testament, my estate will avoid probate, Right?”  Unfortunately, that is not how it works.  Let’s take a look at what probate is and how it works.

Probate is a simple concept to understand.  Sometimes the process of probate is also easy to get through.  Other times it is more difficult and challenging.

There are basically two ways that an estate will need to go through the probate process.  The first way that an estate will go through probate is when someone passes away without a Last Will and Testament.  The second way an estate will go through the probate process is when someone passes away with a Last Will and Testament. What this means is that the Probate Court will oversee the transfer of the decedent’s assets to the correct beneficiaries.  The assets that go through the process are those owned by the decedent.  For example, real estate titled on one’s name is an example of an asset that would go through probate under the above two conditions.

There are pros and cons to having an estate go through probate.  A benefit is that the process is standardized.  The process is methodized and is not different for different estates.

There are some of negative aspects of probate.  The process takes time.  The person doing the work is called the Personal Representative or traditionally called Executor.  In South Carolina, typically at a minimum the process is around a year in length.  The process can be longer depending on the circumstances.  The Probate Court also assesses a fee for the estate to go through the process.  This fee is based on the size of the estate.  In addition, if the Personal Representative chooses to have an attorney assist him through the process, there will be attorney fees as well.  All of these fees should be paid out of the estate’s assets.  However, this will reduce the size of the estate and less will go to beneficiaries.

Probate is also a public affair.  This means that the records can be examined by the public.  One may write to the court for copies of records, one may go online as many probate courts have information online, or one may go visit the court in person.

The Personal Representative should also wait until a specific point in the probate process to distribute assets.  Therefore, there is what I call a holding period until the assets should be transferred to the beneficiaries.  This may make it difficult for beneficiaries who are impatient or do not understand the process.  It may make it difficult for other things that may need to be done.  For example, if a beneficiary wishes to refinance real estate, they will need to wait until the legal title is conveyed to them.

In Estate Planning, one needs to be educated about the options for planning.  While one person may not mind their estate going through probate, for another, it does not fit their goals and ideals.  There is no right or wrong answer.  However, being informed of what it all means is important.

Crystal G.H. Lowery, Esq is a Christian Estate Planning Attorney and is the owner and founding attorney of Law Office Of Crystal G.H. Lowery, LLC. Based on Faith is an organization intently dedicated to inspiring others through mind provoking truths, emphasizing the spiritual impact and necessity of proper Estate Planning.

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