Navigating Probate: Essential Insights for Families Planning for a Child with a Disability

Understanding the Probate Process, Why It Matters, and How to Protect Your Child’s Future with Strategic Estate Planning

When I was a Financial Planner I was taught to encourage my clients to put things in place so they wouldn’t have to go through probate. Probate is one of those things that, unfortunately, families don't think much about until it's right in front of them. It’s a legal process to validate their will and distribute their assets after someone passes away. And when you're planning for the future of a child with a disability, understanding probate and how to navigate around it can make a huge difference in the long run.

Now for my disclaimer. This information is intended to provide general insights into the probate process. It’s not legal advice. I highly recommend consulting with an experienced estate planning attorney, especially one whose focus is Elder Law and/or Special Needs planning (in some states lawyers aren’t allowed to “specialize”, to help create the best plan for your family.

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What is Probate?

At its core, probate is the court-supervised process of proving a will, reviewing assets, paying any outstanding debts and taxes, and distributing what remains to the rightful heirs. This process typically involves a few key steps:

1. Filing a petition with the probate court.

2. Notifying heirs and creditors.

3. Listing and inventorying assets.

4. Paying debts and taxes owed.

5. Distribute the remaining assets to beneficiaries.

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Why Do So Many People Want to Avoid Probate?

This is a good question, and candidly one I didn’t investigate too deeply when I was in Financial Services. The most common answer I got if I did ask was that people didn’t want their estate made public. Here’s a broader overview of some of the reasons. If you have a different reason I’d love to know. Please share it in the comments.

• It’s Time-Consuming: Probate can stretch out for months, sometimes even longer. If a child with a disability needs immediate financial support, these delays can cause disruptions in their care.

• It’s Expensive: There are court fees, attorney fees, and executor fees, all of which can add up. This can significantly reduce the value of the estate that you intend for your loved ones.

• It’s Public: Probate proceedings are public records. This means that anyone can see what assets were involved and who inherited them, which isn't ideal for families that value privacy. Even if you hadn’t thought about privacy, if you’re leaving a vulnerable person a lot of money do you really want to alert possible predators?

• It’s Complex: For larger estates or those with diverse assets (for example rental properties in different states), probate can be a bit of a headache. And when you're navigating care for a child with a disability, extra complexity is the last thing you want.

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Why Probate Matters When You’re Planning for a Child with a Disability