Should I Avoid Probate?

So many people who come to see me are concerned about probate.  They have heard that probate is expensive and time-consuming; most people believe that probate involves the heavy hand of government interfering with their affairs.

What I am about to say may seem ironic, but while probate in some states can be all of these things, probate in New Jersey is not.  That may seem odd given the reputation of New Jersey for being expensive, time-consuming, and heavy-handed, but it’s true.

In states such as Florida and California, probate can be very expensive and very time-consuming.  I have heard that the cost of probate in Florida can be roughly 3% to 5% of the value of the probate assets.  My personal experience with a simple estate being handled in California is that it took years to administer, an estate that would have taken no more than one year in New Jersey.

Many television and radio pundits tell people to avoid probate.  Because people hear these pundits, they come to me and want me to help them avoid probate.  The problem with the pundits’ advice is often that they are speaking to a national or regional audience.  As I say, probate in some states is worth avoiding, but not in all states and not in New Jersey.

What is probate?  Probate is the process of proving the validity of a last will and testament.  Most Wills are valid.  Most people have their Wills drafted by an attorney, so the Will is a valid, properly signed document.  If an attorney did not draft your Will, then you should have an attorney draft your Will.

Assuming that an attorney did draft your Will, then in all likelihood, proving that your Will is a valid Will is a pro forma matter; in other words, it’s something that merely takes the passing glance of a probate clerk to see that your Will is a valid Will.

For that reason, the process of probating a Will takes about twenty minutes.  In New Jersey, the surrogate for the county in which the individual died handles the probate of the decedent’s Will.  The Surrogate is an elected, county official.  The Surrogate serves for a term of five years.  One of the primary jobs of the Surrogate is to probate Wills.

In each county, the Surrogate has an office.  While they call surrogates “judges,” they do not sit in a courtroom of their own.  When you go to probate the decedent’s Will, you are going to an office and dealing with a probate clerk, an office worker who probates Wills all day long.

You fill out a few pieces of paper and pay a fee of approximately $150.  As stated, the process takes about twenty minutes.  And that’s it.  That’s probate.  You probably will never have to interact with the Surrogate ever again.

This doesn’t mean that you are done with the estate work.  You are simply finished probating the Will.  There is other work that needs to be handled with the estate in many cases—gathering up the decedent’s assets, paying the decedent’s debts, accounting to the beneficiaries of the estate—and this work can take time, but none of that work is probate.  That work is called estate administration.

Probate is part of estate administration, but it is one small part of estate administration.  In fact, the act of submitting the Will to probate may be the smallest part of estate administration.

For this reason, I frequently advise client’s to put aside their fears of probate.  In most instances, the fear of the thing is much worse than the thing itself.

Now, if a client has real estate in another state—say a condo in Florida—then I do advise the client to take steps to avoid probate, in Florida.  If you own real estate in another state, then your estate will have to be administered in New Jersey and the other state, for instance, Florida.

You can avoid probate in the foreign jurisdiction by placing the condo in Florida in a revocable living trust.  By doing this, you remove the need to probate the decedent’s Will in Florida.