When you start the process of drafting an estate plan, your friends, family and advisors might speak of probate in a negative light. Probate is necessary for confirming the validity of a will, but you should nonetheless be aware of how probate might affect the execution of your will after your passing.
Probate entails lengthy proceedings for your family as the court verifies the will and oversees the distribution of your estate by your named executor. While probate is often a relatively straightforward matter, certain unusual circumstances can lead to a situation in which the court may not follow the exact terms of your estate plan.
Can probate lead to the alteration of my will?
The duty of the probate court is to carry out the will in accordance with the testator’s intentions. However, your beneficiaries and other individuals with a vested interest in your estate have the right to contest your will. If the court receives evidence that part or all of the will is invalid due to fraud, duress or lack of testamentary capacity at the time of writing, then it may be necessary to omit affected sections of the document.
Is there a way to avoid probate altogether?
Avoiding probate may be the best way to retain full control over the distribution of your estate while also saving your family a great deal of time and effort. A well-formed revocable trust empowers you to seamlessly transfer assets to a beneficiary upon your death while still retaining your full ownership of those assets while you are alive.
It is a near certainty that the probate court will follow your will to the letter unless you are a victim of fraud or undue influence. Even so, using a trust can eliminate any uncertainty you might have regarding probate.