When an Estate is going through Probate confidentiality is lost, because Probate records can be

accessed by the General Public

WHAT ARE THE DRAWBACKS OF

PROBATE IN INDIANA?

PAUL A. KRAFT Indiana Estate Planning Attorney

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If you utilize a last will to state your final wishes, the executor that you choose cannot distribute assets to the heirs immediately after your death. Before inheritances are distributed, the will must be admitted to probate.

During probate the court will

examine the will to determine its validity. Assuming the will is valid, the executor will settle final debts and prepare the assets for distribution to the

heirs.

There are some inherent drawbacks that go along with the probate process. We will examine them in

this paper.

DELAYED ASSETDISTRIBUTIONS

The process of probate can be time-consuming. The time lag can be an inconvenience for some people, but it can create hardships for others who may have immediate financial need. In the state of Indiana, a simple case could pass through probate in six months to a year. Cases that are complicated can take considerably longer. A challenge

to the will could draw things out, and the probate process can be prolonged if there is a great deal of property that must be liquidated.

ACCUMULATION OF EXPENSES

Probate is not free. There are numerous different expenses that can accumulate during the probate process. These would include the executor's remuneration along with court costs. There can also be legal fees, accounting expenses, appraisal charges, and liquidation fees.

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When you are planning your estate, the point is to provide for your loved ones. Everything that is spent during probate would have otherwise gone to the people on your inheritance list.

PUBLIC PROCEEDING

Estate matters can be

sensitive. You have to make decisions with regard to how you want to distribute your assets. There could be family members and associates

who would not be particularly pleased with the way that you planned your estate. People typically like to

conduct their financial affairs confidentially, and this can certainly extend to your final affairs. When an estate is going through probate confidentiality is lost, because probate records can be accessed by the general public. This is another one of the drawbacks of probate.

AVOIDING PROBATE

Probate enters the picture if you maintain direct personal possession of your property. This would be the case if you held on to your property and arranged for its distribution through the execution of a last will.

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There are strategies that can be implemented if you want to facilitate asset transfers outside of the process of probate. You don't have to maintain sole possession of your personal property. You could convey your assets into a trust to avoid probate.

One type of trust that is commonly used by people who are not extraordinarily wealthy is the revocable living trust. With this type of trust you do not surrender control of the assets while you are living. You can act as the beneficiary and the trustee at first, and you could actually revoke the trust if you wanted to do so. When you create the trust agreement you name a successor trustee to

administer the trust after your passing, and you also name successor beneficiaries. After your death, the successor trustee would distribute the trust's

assets to the beneficiaries in accordance with your wishes. These distributions would not be subject to the probate process. Revocable living trusts facilitate probate avoidance, but there are other

strategies that can be implemented. The ideal course of action will depend upon the circumstances.

SUMMARY

Probate is the legal process of estate administration. If you are the sole owner of personal property when you pass away, this property is typically going to become probate property. It cannot be distributed to the heirs to your estate until the estate has been probated.

There are three primary drawbacks that go along with the probate process: it is time-consuming, it can be expensive, and it is a public proceeding that allows anyone and everyone to find out how you planned your estate. It is possible to facilitate postmortem asset transfers outside of the process of

probate. If you want to explore your options, schedule a consultation with a licensed estate planning attorney.

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REFERENCES

Nolo http://www.nolo.com/legal-encyclopedia/free-books/avoid-probate-book/chapter0-4.html Legal Dictionary http://legal-dictionary.thefreedictionary.com/probate

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About the Author Paul A. Kraft

Paul Kraft is Co-Founder and the senior Principal of Frank & Kraft, one of the leading law

firms in Indiana in the area of estate planning as well as business and tax planning.

Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and

state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.

In addition to his practice, Mr. Kraft has lectured extensively in the areas of living trust planning, Medicaid planning, and

presenting public and private seminars on the importance of proper estate planning. He has also authored various articles

on estate planning and is a contributing author of LEGACY: Plan, Protect, and Preserve Your Estate–Practical Answers from America’s Foremost Estate Planning Attorneys.

Mr. Kraft is a co-founder of the Indiana Network of Estate Planning Professionals, a charter member of the AmericanAcademy of Estate Planning Attorneys and a founding member of the National Network of Estate Planning Attorneys. He is

also a member of the Indianapolis Bar Association, including the Taxation, Business Law and Estate Planning sections; the Indiana State Bar Association, including the section on Taxation

Law; the Indiana CPA Society; and the Estate Planning Council of Indianapolis. Mr. Kraft is admitted to practice law before the Supreme Court of Indiana, U.S. District Courts, and U.S.

Tax Court.

Frank & Kraft A Professional Corporation Attorneys at Law www.FrankKraft.com 135 N. Pennsylvania Street Suite 1100 Indianapolis, IN46204-2485 Phone: (317) 684-1100 Fax: (317) 684-6111