If you ask a friend to tell you a little bit about probate, and that person is a good friend, he or she will tell you to do whatever you can to avoid it.

Probate is the legal process used to distribute assets of a deceased person. Typically when a person dies, he or she leaves assets (money, real estate, other items of value) and debts of some kind. In probate, the court system counts up all the assets, pays off all the debts, and distributes whatever is left over to the person's heirs.

If the deceased left a last will and testament, the court tries to honor the outlined requests. Without a will, the court decides how the assets are distributed. If you want to make sure your dog walker gets a bigger inheritance than your cousin Ted, it is imperative that you leave a will.

Why should I try to avoid probate?

1. Time

One reason people strive to avoid probate is that it can be time consuming; in most cases, it can range from one to three years. Since the process is controlled by the courts, it usually proceeds very slowly even though, in theory, it can be completed in as few as six months. Probate can take even longer if the estate is complex or if other heirs contest the will.

2. Money

While the costs of probate vary by state, generally probate can be very expensive to a deceased's estate and therefore, to a deceased person's heirs. The court takes a percentage of the gross estate (the amount left behind before debts are paid) in fees for probate court, which can range as high as 10%. The court may use money taken from the estate to appoint attorneys to guard minor heirs' interests or to conduct other parts of the process. Typically, if probate can be avoided, the heirs, not the state, can spend the deceased's money.

3. Privacy

Since probate is handled by the courts, all information used in the probate process becomes part of the public record. So, details and documents relating to your estate's debts and the assets are available for all to see, and so are the distributions. Anyone interested can find out who inherited your great grandmother's rubies, original Van Gogh painting, and gold plated flamingoes. This kind of information is a gold mine for crooks and scammers.

What should I do?

Well, if you are sure you won't leave anything behind or simply don't care who inherits your action figures, more than likely you don't need to do anything. However, if you have assets that are sizeable, you may want to investigate living trusts. Forming a living trust helps make sure your assets will transfer to your heirs privately and at a lower cost to your estate.

LegalZoom is not a lawfirm and can only provide self-help services at your specific direction. Information contained above is subject to change and is not applicable to every state. Visit LegalZoom.com for specific state-by state-documents.

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