Overview Of The Probate Process
Probate is a process through the court system to ensure the legal transfer of assets from the deceased’s name to the names of the deceased’s legal heirs or beneficiaries.
Probate is generally also necessary to prove the validity of a will, appoint someone to manage the estate, inventory and appraise estate property, pay the deceased’s debts and taxes, and distribute the estate property as directed by the will (or by state law if there is no will).
What Is So Bad About Probate, And What Should I Do Next?
You might read online that probate is ‘bad news’ and that it tends to be very expensive and time-consuming.
It depends, but one thing is for sure: The probate process is a public process that can be avoided with proper planning in advance.
But if you are now in a situation where you must go through the probate process to administer the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly and with as little expense as possible.
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How Does Probate Begin?
State law designates who is entitled to begin the probate process.
The person with the highest priority is the person who is named in the deceased’s last will as the “executor” or “personal representative.”
If there is no will, then the law generally establishes a hierarchy of who is eligible in what order, normally starting with a surviving spouse, then surviving adult children, and so on.
The individual who has priority would start the probate process by having an attorney prepare the legal documentation to initiate probate and by filing the original will with the probate court.
Depending on the circumstances of the estate and the family, sometimes probate can be opened without advance notice to interested parties; other times, advance notice to interested parties is required before probate is officially opened.
How Is The Executor Chosen?
If the deceased person left a last will that is recognized as valid by the probate court, then the person named in the will as the executor or personal representative typically will be appointed, barring extraneous issues such as that person’s illness or old age.
If the person named in the last will is unable or unwilling to serve as executor, or if there is no will at all, then the probate court may appoint an adult family member, trusted friend, or professional third party.
How Does The Executor Get Paid?
State law provides that executors may be paid reasonable compensation for the time spent in administering the estate. This said, some executors, particularly if they are the surviving spouse or family members of the deceased, decline to be paid.
Could I Be Held Personally Liable For Making A Mistake As An Executor?
Being an executor is a big responsibility.
The probate code contains pages upon pages of complex legal rules and procedures that an executor must follow during the probate process. In addition, there are certain deadlines that an executor must meet in filing papers with the court and providing notice to interested parties.
If an executor does not comply with any of these rules, he or she can be held personally liable for any losses to the estate.
My Loved One Had A Trust… Will We Need To Go Through Probate?
In most cases, if your loved one left a trust as the cornerstone of their estate plan, then no you do not need to go through probate.
However, there is one big caveat here: The deceased must have ensured that all of his or her assets were properly titled in the name of the trust or properly named the trust as beneficiary in order to completely avoid probate.
Unfortunately, not all estate planning attorneys who draft a trust for their clients ensure that assets are properly owned and beneficiaries are properly designated.
Time and again we have helped family members of a recently passed loved one who found out title and beneficiary designations were not proper, and then they face the frustration, expense and delay of a possible probate proceeding even though the person they loved had a trust.
You may be asking: Why is that?
Oftentimes, a trust was prepared many years ago and was never updated. Assets changed, the law changed, but the trust only got more out of date. That is why it is so very important that you carefully choose your estate planning attorney who will meet with you for regular reviews of your estate plan and your assets so that the planning you do now works as planned later.
This is why we do things so much differently than most other lawyers and law firms here at Cava & Faulkner.
What Assets Are Subject To Probate?
As a general rule, assets owned solely in the name of the deceased person are subject to probate.
By contrast, assets with title designated as “joint tenants with right of survivorship” are not subject to probate and pass by operation of law to the surviving joint owner. Also, assets with a “transfer on death” or “pay on death” designation, such as life insurance and retirement accounts, are not subject to probate and pass by operation of law to the designated person.
In some situations, however, assets that would otherwise pass by title or beneficiary designation to a specified person can be subject to the probate process. Please call us if you have questions about your specific situation.
How Are Probate Assets Distributed If There Is No Will?
When there is no will or trust to dictate who receives what, then probate assets will be distributed according to state law.
In other words, the state legislature has made their best guess as to who you would want to receive your assets.
The typical hierarchy is that all probate assets go to your surviving spouse; or if you do not have a surviving spouse, then all probate assets are split equally among your children; and so on following the branches of your family tree.
Where it gets tricky is if your surviving spouse is not the parent of your surviving children; or if you have a surviving spouse, no children, and a living parent (some states dictate that your surviving spouse split your estate with your living parent in this scenario); or even if your surviving spouse has children who are not your children (some states have complicated formulas for who gets what in this case).
You can see how things can get complicated quickly when you rely on state law alone instead of doing your own planning upfront.
How Long Does Probate Take And How Much Does It Cost?
Probate proceedings typically take around 6-12 months if there are no snags whatsoever. Some probate cases linger for two or more years if beneficiaries are disputing or if the deceased left property in multiple states.
In terms of cost, every probate proceeding is different. Probate costs include court filing fees, attorney fees, appraisal fees, professional fees such as tax preparation, executor compensation, document certification fees, recording fees, and more. Some states allow fees to be determined as a percentage of the probate assets, and other states provide that fees are determined pursuant to a statutory schedule.
How Can I Avoid Probate?
The best way to ensure your family never has to go through a probate proceeding is to make sure that you choose your estate planning attorney wisely.
Do not assume that all attorneys are the same.
Too many lawyers only “dabble” in estate planning. Do not choose a lawyer who does estate planning “on the side” – this exposes you to blunders throughout the estate planning process, causing problems for you down the road and ultimately exposing your family to the possibility of experiencing the delays, hassle, and expense of a probate proceeding.
Plus, did you know that probate sometimes happens even when you have a trust! Shocking right? This happens because the attorney you worked with did not take the time to make sure that your assets are always owned by your trust, throughout your lifetime.
You deserve to not only be comfortable with the attorney you ultimately chose, but also be confident that they are the right attorney for you and will be extremely thorough ensuring that your family will never have to endure a probate proceeding.
Choosing your estate planning lawyer is one of the most important decisions you will make.
If you put in the time and effort to find the right lawyer, you will be rewarded with a compassionate advisor who will help you navigate the estate planning process with minimum headache and hassle.
“What Do I Do Now?”
If you are ready to get started with the estate planning process now to ensure your loved ones never go through the probate process, please contact us and we will help determine your next best steps.
We are here in service to making this all as easy as possible for you to make the very best legal decisions for the people you love the most.