The probate court exists primarily for two reasons – protection and distribution. During your lifetime, if you become incapacitated and need someone to act on your behalf, he / she must have legal authority to do so. Unless you have given the person(s) you want that authority (for example through a power of attorney), they will have to get an Order from the probate court instead.
Generally, probate court protection is either in the form of a guardianship (protection of the person) or a conservatorship (protection of the assets). When a person dies owning any assets, the probate court provides legal authority for the assets to be distributed. Whether or not the person has a Will, the probate court will ultimately issue an Order directing distribution.
Besides the added costs and time delays that often go along with probate court process, people who have gone through probate often speak about the loss of control – in court, the judge always has the final say. Perhaps most important to some is the fact that the entire probate process and all the probate records are open to the public.
In my experience most people are looking to maximize their control, minimize the process and time for administration and keep things private. If those are your planning objectives, then with proper planning you can avoid the probate process.
Written by Sanford (Sandy) J. Mall, JD, CELA, CAP, VA Accredited Attorney. Sandy is the founder and senior partner of Mall Malisow & Cooney, P.C – The Holistic ElderCare, Special Needs & Estate Planning Law Firm located in Farmington Hills, Oakland County, Michigan.