Probate is the legal process required in many cases to settle someone’s estate after they pass away. The word “probate” may cause some people to cringe as they recall a negative experience with the estate of a loved one. Or maybe they have heard Suze Orman or Dave Ramsey advise listeners to avoid probate at all costs. Unfortunately, there are many misconceptions about probate. Having a more complete understanding of the process can help clear up these misconceptions and help you avoid unintended consequences when thinking about your estate plan.

Probate is the process of settling someone’s estate who owned property just in their name at the time of their death. Any property owned jointly with someone else does not go through probate, but instead immediately becomes the property of the surviving joint owner or owners. Likewise, any property that lists beneficiaries will go directly to the named beneficiaries and bypasses the probate process. More specifically, a probate in North Dakota is required if the person: (1) owned any real estate (land or minerals) just in their name, regardless of the value; or (2) owned $50,000 or more of personal property (bank accounts, life insurance proceeds, machinery, vehicles, etc.) in their own name.

For example, assume Grandpa had a Will stating Grandma is to inherit everything from him. Grandpa passed away owning a home in Minot as joint tenants with Grandma, a $10,000 bank account just in his own name, and a life insurance policy for $60,000 naming each of their six children as beneficiaries. A probate of his estate is not required. Instead, Grandma records his death certificate with the county to remove his name from ownership of the home, she fills out an Affidavit of Collection to take to the bank to collect the $10,000 in the account, and the children fill out the life insurance paperwork to collect their proceeds. With these basic rules in mind, let’s review the first common misconception of probate.

Misconception #1: My estate won’t need to be probated if I have a Will. Actually, the opposite is probably true. The dictionary definition of probate is the process of proving a Will is valid in court. Consider how Grandpa’s situation changes if the home was owned only in his name instead of jointly with Grandma. In that case, Grandma would have to probate Grandpa’s estate to transfer ownership of the home to her. This is true even though they were married and the Will states Grandma is to receive everything. This shows us that it is the way you own property that dictates whether a probate is necessary, not whether you have a Will. Grandpa could (and should) have avoided probate if his home was owned jointly with Grandma. However, don’t assume joint ownership is the best option for all circumstances; owning property jointly with your children is rarely advised. In addition to drafting a Will for you, your estate planning attorney will also recommend how your accounts and properties should be owned, including when to use joint owners and beneficiaries and when not to do so. Your attorney will take the guesswork out of this for you.

Misconception #2: The court will decide who gets my assets after I pass away. If you have a Will, the terms of your Will dictate who inherits from you. If you do not have a Will, the laws of North Dakota dictate who inherits from you. As with anything, it is best to proactively state your wishes in a Will instead of relying on the default rules, which can become complicated in second marriage situations and for individuals without children. The misconception here is that the judge decides “who’s in and who’s out” of the family of a person who dies without a Will. The laws of North Dakota are clear, and controversy is rare and usually limited to whether someone was actually a blood relative of the deceased or not.

Misconception #3: Probate unnecessarily drags out the settlement of an estate. The probate process generally involves the following steps: (1) the personal representative (PR) meets with an attorney to review the Will, if any, and to begin gathering details about what Grandpa owned; (2) the PR submits documentation to the court asking the judge to officially appoint her as PR and then notifies all the relevant family members and other interested parties that the probate is opened; (3) the PR gathers information about what Grandpa owned at the time of his death and prepares an estate Inventory to send to all interested parties; (4) the PR pays all the final bills and may publish a notice to creditors in the newspaper; (5) the PR distributes assets out of the estate to the intended parties; and (6) the PR files all necessary tax returns and closes the estate.

For most probate cases, other than approving the appointment of the PR, the judge is typically not directly involved in the probate process unless the PR asks the judge to approve a transaction or distribution or someone files an objection. If family members sue each other, costs will understandably escalate as formal court rules must be followed.

In North Dakota, the probate process is fairly streamlined, and fees and costs are reasonable. The court filing fee cost for a probate is $80, whereas court filing fees can be $200 or more in other states. Additionally, to hire a probate attorney in North Dakota you will likely pay the attorney’s hourly rate for services provided, not a percentage of the value of the estate as is commonplace in a few other states. This is fair because as you can imagine, an estate worth $750,000 that consists of a sole investment account is much simpler to settle than a $750,000 estate comprised of farmland, residential real estate and a dozen different financial accounts.

Misconception #4: Probate must be avoided at all costs. As with any type of legal planning, there is no “one-size fits all” estate plan that universally works for everyone. For some people, a Will that is probated is the most efficient way of settling their estate. Consider if Grandpa had passed away and was survived only by his six children whom he listed in his Will to inherit from him. Probating his estate to sell his home, consolidate his other financial accounts and pay his final bills is a practical way for one person, the personal representative, to oversee these tasks, and then distribute the proceeds of the estate among all six children. Probate makes the chaos of all six children being involved in the many details of settling his estate unnecessary.

In all probates, the Will is filed with the court and becomes part of the public record. If this thought makes you feel uncomfortable, you may decide to use a Revocable Living Trust instead, which avoids the probate process and keeps your wishes private. This is ideal for people who are disinheriting a child, leaving a portion of their estate to charity, or making a gift to a grandchild or other young person. Since a Revocable Living Trust is not filed with the court, much privacy is gained. However, know that the same types of tasks to wrap up someone’s affairs after death are still necessary, such as making an inventory of assets, paying final bills, and filing final tax returns, so the timeline will be remarkably similar.

The routine tasks of closing out accounts, selling property, paying bills and filing final tax returns are themselves tedious and time consuming. Those tasks must be done after someone passes away whether a probate is required or not, and deciding whether a probate makes sense for your estate is a decision your estate planning attorney can talk through with you based on your individual circumstances.

This article does not constitute legal advice. Each individual should consult his or her own attorney.