Avoiding Government Interference

Almost every week a client asks me how to avoid “government interference” of his estate after their death.  The client wants his children to have an easy time accessing his assets after he dies and doesn’t want the government getting involved in his affairs.

The most common solution the client offers me for this perceived problem is a trust.  Whether it be a friend or the internet or an article the client has read, he believes that a trust, most frequently a revocable living trust, is the solution to the problem of government interference.

In my career I have drafted thousands of Wills, so I have met with hundreds of family members after the death of a loved one.  Whenever I mention the words “probate” or the “surrogate’s office,” you would think that I was speaking a foreign language or about some event that involves the physical infliction of pain.  “What’s that!” is the common response.

The process of probate involves proving the validity of a Will and duly appointing the executor of the estate.  When I say this, it sounds complicated.  Proving the validity of a Will.  Duly appointing an executor.  Holy smokes.

And in some states the probate process can be very difficult.  In Florida and California, the probate process appears to be far more complicated than it is in New Jersey.  I often think that people have listened to someone who is talking about the probate process in one of these states and is failing to differentiate the process of probate between the states.

For instance, the TV personality Suze Orman often talks about the probate process and how it should be avoided at all costs.  Suze Orman is from California.  In California, probate does appear to be quite difficult, based upon my limited experience with the process in that state.

California is not New Jersey, though.  In New Jersey, the process of probate occurs before the surrogate of the county in which the decedent died.  A surrogate is an elected official who is responsible for admitting Wills to probate.  Each county has a surrogate, though some of the less populated states share surrogates.

In order to admit a Will to probate, the person named as the executor in the Will takes the original Will, the original death certificate of the decedent, and a checkbook to the surrogate’s office.  Probate costs about $180.

Once at the surrogate’s office, the executor provides the surrogate with the Will and the death certificate.  The surrogate will ask a few questions about the decedent and about the decedent’s closest relatives and have the executor sign a few forms that basically say the executor agrees to do a good job.

The surrogate will then issue a piece of paper to the executor that essentially says the executor is officially the executor of the estate.  The executor can present that piece of paper to the various banks and financial institutions where the decedent had accounts to prove that the executor has the authority to access the accounts of the decedent.

That’s it.  The process of probate is complete.  The Will has been proven to be valid.  The executor has been duly appointed.  The entire elapsed time of probate would be about 30 minutes.

Does this seem like something you should try and avoid?  For some people, the answer may be yes.  In reality, though, there is no “government interference.”  The cost of probate is so low that it would cost more money to avoid probate than it would to actually probate the Will.

In my opinion, there is no value to avoiding probate.  There is no Big Brother looking into your affairs.  The whole world will not know your assets.

I also think that many people who try so hard to avoid probate don’t.  That’s because if you die with one asset that needs to go through the probate process, such as your car, then you have to probate your Will in the same way you would if all your assets had to go through probate.

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