Probate is the court process to determine who will have the power to manage your stuff after you die. Basically, if you have assets you don’t want your heirs to fight over, you would be well served to see an estate planning lawyer and get things taken care of while you are alive. The financial cost will be less and the emotional cost to your heirs could be immense.
In theory, probate happens to everyone because everyone dies, and this is the official way that the court case is taken care of. However, the reality is that most of the time, a probate is open when somebody needs to be appointed to sign for the person who just died. Certainly in Utah, a probate will be open just long enough to get that person appointed, and then unless other issues show up, probate is closed as soon as that person is appointed and has the power to sign things over.
Some attorneys that started the trend to move to trusts tended to magnify the idea that probate is awful. Probably 8 or 9 out of 10 probates that I file are quite simple. What we’re doing is just getting someone appointed to sign a deed for a house. It is not the horror, generally, that so many people think of. It is more complex than doing it with an estate plan and more expensive; but if the beneficiaries are all in agreement of how everything goes, then it can happen and be over within a few months.
Having said that, when things are not simple, especially when there is a mixed marriage with children from two marriages, oftentimes probate gets very complex, and those are the nightmares everyone talks about. I am involved with one or two will contests at any given time; they’re extremely expensive and stressful for everyone involved. Generally, it just comes down to a court having to make decisions that the beneficiaries can’t because of, most of the time, emotional issues. That is a prime reason why I really try hard with my clients that come from a mixed marriage to have a good financial plan to avoid those nightmares.
Simple probates are not terribly difficult once you’ve done a few of them, but there are probably a dozen forms that need to be filled out for the filing and the procedure that goes with it, so it is possible, certainly, but I would not advise it. I would advise that they use an attorney with some experience in probate; then it can be the simple straightforward event that the court system is designed to handle.