Why Would I Want to Avoid Probate in Utah? (part 2) (estate planning basics)

May 23, 2015 - Posted by: admin - In category:

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When a professional is billing you by the hour, things can get expensive in a hurry.

In our last post, we focused on the public nature of probate and noted that fact, by itself, this publicity is often reason enough for people to choose probate avoidance planning methods. By the way, notice that we used the word “choose” in the context of probate avoidance. That rightly indicates the need to take affirmative action if you wish to avoid probate for yourself and/or for your loved ones. Failing to choose, failing to take action is by default a choice for probate.

In this post we will discuss another potentially negative feature of probate and that is the fact that any professional who is working on your probate is likely going to be charging you on an hourly basis. This is going to be true for your estate planning attorney, your accountant, your appraiser and likely any other professional involved in this process. Such professionals will likely require a retainer upfront (i.e. a deposit), which they will then bill towards as they perform work. Once they have exhausted that retainer, they will require you to pay an additional deposit (also known as replenishing the retainer). The bottom line is that when you have someone doing work for you an hourly basis, the bill can grow quickly. This potential of exponential growth of fees can be (and normally is) compounded when there are several professionals working at the same time.

You can now begin to see how probate can prove to be quite expensive at times, depending on the details of the case, the amount of work to be done, how many professionals are involved and how long the probate proceedings last.  How long does a typical probate proceeding last? Great question. In Utah, a good estimate for an average probate matter is 6 to 18 months. Again, that is an average estimate. Some proceedings are done in a shorter amount of time and some take longer (sometimes a LOT longer). Another potential problem here is that there is really no way of knowing beforehand how long it is going to take. There are many rules related to how probates are commenced, what must be done and by whom such things must be done, but the Utah Probate Code does not have a deadline by which such matters must be completed (once they have started). In other words, there is no law, rule or regulation that if a probate proceeding has been going on for 4 years or longer, it must be terminated on the grounds that it has taken too long. This is consistent with all court proceedings. Remember that probate is a court proceeding.

To summarize, while it is NOT the case that all probate matters are long, expensive, ugly and messy ordeals that you will read about in the newspaper or online, there is always a chance that your probate could become one of these long and drawn out affairs. There is no way of knowing beforehand whether your probate would be short or long, clean or messy, cost-effective or expensive. While it is sometimes true that the larger the estate, the greater the chance of probate battles, this is NOT a hard and fast rule and not something you can rely on in making your planning decisions. Rather, we have seen many instances where there were long and nasty (and therefore expensive) fights over a relatively modest amount of property. Think of situations where your children have fought over the last piece of candy or last cookie–this same dynamic can sometimes play out in the court.

You have the choice of whether or not probate will be in your future or the future of your loved ones. While there is no right or wrong answer, you should understand the consequences of your choices and your planning (or lack thereof). True, you may not care what happens to your property after you are gone. On the other hand, you can be certain that those you leave behind will care very much whether you have left them a streamlined plan free of court intervention or a mess that they must deal with for a long period of time.

The choice is yours.  Choose wisely.

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