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Common Misconceptions About Probate 

E.N. Banks-Ware Law Firm LLC June 8, 2023

Probate can seem overwhelming and daunting to those who are not familiar with the process and do not understand what to expect. Unfortunately, there are many misconceptions about probate originating from the lack of knowledge in this area.  

The section below aims to debunk some of the most widespread misconceptions about probate. As a probate attorney at E.N. Banks-Ware Law Firm LLC, I educate my clients on the facts about probate to help them smooth the way forward. From my office in Lithonia, Georgia, I provide legal counsel throughout the state, including Covington, Decatur, Lawrenceville, McDonough, and Conyers.  

Debunking Common Misconceptions About Probate

By being able to separate fact from fiction, you can have a better understanding of what probate entails and how you can effectively navigate the probate process. Below are some of the most common misconceptions about the probate process.  

“If I have a will, my estate will not have to go through probate” 

This is one of the most common misconceptions about probate. While having a will is an essential step to a well-planned estate, it does not mean that the estate is guaranteed to bypass probate. A will merely outlines one’s wishes and desires for the distribution of their assets after they die, but the probate court must still oversee their implementation. A will must be validated by the court before it can be executed. 

“Probate is always required” 

Not every estate needs to go through probate. If the deceased had a trust or joint ownership with a beneficiary, these assets will pass directly to the beneficiary without the need for probate. However, if the estate had only individual ownership, probate may indeed be required. 

“Probate means that the state is getting all of my assets” 

This is entirely untrue. Probate does not mean that the state will be getting all the assets you have worked hard to accumulate. Probate is simply a legal process that ensures the efficient transfer of assets from the deceased to their intended beneficiaries. 

“The probate process will take years to finalize” 

The length of the probate process will depend on multiple factors, including the complexity of the estate and the state’s laws involved. However, it is a widespread myth that the probate process takes years to finalize. In most cases, the probate process should be completed within ten to twelve months, with some even finishing within a couple of months. 

“Taxes will consume most of my estate”  

Probate does involve taxes, and taxes will have to be paid on the value of the estate. However, taxes usually do not consume most of the estate. Proper planning and strategizing with the help of an attorney can help you minimize taxes. Taxes should not be a cause of panic in the probate process. 

“The oldest child must be the executor” 

This is a myth. The executor of an estate should be someone who is honest, knowledgeable, trustworthy and has the best interest of the beneficiaries in mind. Age and birth order do not matter in the appointment of an executor. 

“I do not need an attorney for the probate process”  

While it is not required by law to hire an attorney, having an attorney on your side can be beneficial. An attorney will offer legal counsel and guidance through the process, ensuring that everything is done according to the state’s laws. Not having an attorney might cause you to miss certain steps and make costly mistakes, ultimately costing you more in the long run. 

Get the Facts. Consult With a Trusted Attorney.

Understandably, probate can be complicated and daunting. However, do not let misconceptions about probate muddy the waters. If you still have questions about the probate process, contact attorney Banks-Ware. As a probate attorney at E.N. Banks-Ware Law Firm LLC, I can assist you whether you are a personal representative tasked with settling an estate or you are drawing up your own estate plan. Call my office today to get the facts.