What Is Probate?
When someone passes away with just a will or without any estate plan at all (called "dying intestate") their estate must pass through the probate process. This is a court supervised process where the assets of that person's estate are gathered, debts are assessed, and ultimately legal title of the assets of the estate pass to the proper parties. A personal representative, typically a close family member or friend named in the will or appointed by the court, will be charged with overseeing this task and is assisted by an attorney. Steps involved with a probate can include:
- Locating and depositing the deceased's final will with the court
- Safekeeping, inventorying and valuing all the assets of the estate
- Ascertaining and notifying potential creditors of the estate
- Publishing notice in the local paper for any unknown creditors
- Locating and notifying potential beneficiaries and others who may have an interest in the estate
- Pay or settle any final claims or debts of the estate and object to any improper claims
- Coordinate with CPAs and other professionals to prepare and file final tax returns for the deceased and the estate if necessary
- Managing the deceased's property and ongoing affairs while the probate is pending
- Resolve any disputes that may arise between beneficiaries or creditors
- Along with other duties that may be necessary to wrap up the deceased's final affairs
How Does The Probate Process Work?
Probates vary in complexity depending on the amount of pre-planning that was done, whether or not there was a will, the value of the assets involved, if there are creditors who are owed money and whether anyone objects to the will or contests the distribution of property. Accomplishing these tasks, even under the best of circumstances, can be frustrating and time consuming. It also comes at a time when you are grieving the loss of a loved one and this can make the process seem overwhelming.
The cost and time involved in a probate can vary dramatically depending on complexity of the estate. For very simple estates that involve minimal assets (typically less than $75,000) a summary (or short form) procedure may be used that may take 6 months or less to complete assuming there are no other complications. However a typical estate will take much longer. It is not uncommon for a probate to take a 9 - 18 months to settle. Probates that are contested or involve litigation may take much longer. During this time use of the assets will be restricted.
The Personal Representative is entitled to reasonable compensation (defined by law and varies with the size of the estate) along with reimbursement for legitimate expenses incurred. Common expenses of probate can typically take 3% to 7% of the total estate value. These expenses include the Personal Representative's fee, attorney fees, court costs, appraisals, accounting fees, costs of publication and the like. If there are debts that must be settled, these will also have to be negotiated out of the value of the estate.
If a probate is not administered properly, or not done at all, title to the deceased's property will not legally pass to the beneficiary. This can create all kinds of problems later, including clouds on title of real estate, disputes between family members and creditors and other consequences that may not be fully realized for years.
Can Probate Be Avoided?
Yes! In many cases probate can be avoid or minimized. But only with advanced planning. In fact, I meet many new estate planning clients because they've been through a probate with a loved one and want to avoid putting their family through the process. Don't leave your family with a mess on their hands. One of the greatest gifts you can give your loved ones is a well organized and properly planned estate.
When I sit down with a client to discuss estate planning strategies one of the most important items we discuss is minimizing or avoiding probate. We look at the specific assets and desires of the clients and determine what techniques make the most sense given their situation. Sometimes that's done through the use of tools like a revocable trust (sometimes called a living trust), examining how assets are titled, or naming beneficiaries on accounts. Having a trusted advisor who will look at the big picture as well as the specifics of your situation is important.
Whether you need help administering the estate of a friend or family member or want to discuss how you can get your own estate in order to avoid or minimize the need for probate, contact my office and we can setup an appointment to discuss how I can help.