Frequently Asked Questions about Probate

What is probate?

Why is probate necessary?

Who is in charge of the probate process?

What happens if the decedent owned land in more than one state?

Is the personal representative compensated for probate?

How much does probate cost?

How long does probate take?

What can complicate the process?

Do I need to hire a probate attorney?

Do all assets have to pass through probate?

Are there any alternatives to formal probate?

Should I plan to avoid probate?

What is probate?

Probate is a court-supervised process in which the property of a person who has died (the decedent) is transferred to his or her beneficiaries. The steps involved in the probate process include:

Proving in court that the decedent’s will is valid

Appointing a personal representative to manage the probate process

Inventorying and appraising the decedent’s property

Paying off any outstanding debts and taxes

Distributing remaining property to beneficiaries

Formally closing the estate

These steps are carried out by the personal representative (sometimes called an executor or administrator), a person or institution that administers the decedent’s estate on his or her behalf. The probate court closely supervises how the personal representative fulfills his or her fiduciary duty.

In most cases, the probate process involves a substantial amount of paperwork and court appearances by lawyers. The cost of probate court fees, lawyer fees, debts and taxes are first paid off using funds from the estate, and everything left is distributed to beneficiaries named in the decedent’s will.

Why is probate necessary?

Probate is an important legal process that officially wraps up a deceased person’s financial affairs. In short, probate allows the court to ensure that the decedent’s debts and taxes are paid and that all property is accounted for and properly transferred to the rightful beneficiaries.

When a decedent leaves a valid will, it needs to be submitted to the probate court. Otherwise, it holds no legal power for transferring ownership of property from decedent to beneficiary. If there is no valid will, probate allows the court to transfer assets to the persons entitled to them according to state law.

If someone dies with no property to be transferred, there is typically no need for probate.

Who is in charge of the probate process?

Although the probate judge oversees every aspect of the probate process, the personal representative is in charge of all the heavy lifting. In most cases, the personal representative (sometimes called the executor) is named in the decedent’s will. If there is no valid will to name an executor and no one volunteers, the court will appoint someone to take the role. The court typically appoints a person or organization with a large stake in the outcome of probate, such as a surviving spouse, beneficiary, bank or trust company.

The personal representative performs many important probate duties. In the simplest of terms, the personal representative will:

Identify, collect and determine the value of the decedent’s assets

Pay off any taxes and outstanding debts

Distribute remaining assets to beneficiaries

These tasks can be complex, time-consuming and highly demanding. The personal representative has a legal duty to administer the estate according to state law, and will be held liable to beneficiaries if the estate is managed poorly or dishonestly.

What happens if the decedent owned land in more than one state?

The state in which the decedent took up permanent residence is almost always where the probate of his or her estate will take place. If the decedent owned real estate in another state, however, the laws of that state determine who is entitled to the property. This can be bypassed if the personal representative provides the state with a valid will, but this situation calls for a second out-of-state probate, known as ancillary probate.

Ancillary probate is required in every state where the decedent holds property besides his or her state of residence. This can make the probate process expensive, inefficient and time-consuming.

Can a personal representative compensated for probate?

Yes. For performing the duties of probate, the personal representative earns a fee — typically between 2 percent and 4 percent of the value of the probate estate. State law will determine this fee, and the percentage decreases as the value of the estate increases.

In addition to this statutory fee, the personal representative is usually reimbursed for any out-of-pocket expenses associated with managing and settling the estate. The court has the final say in this, as it must approve all fees and expenses.

How much does probate cost?

The cost of probate is set by law, so it is different in every state. In general, the process can easily cost between 3 and 7 percent of the total estate value.

Probate-related costs can include:

Court fees

Lawyer’s fees

Appraiser’s fees

Accountant’s fees

Publishing notices to creditors

Copying, mailing and other out-of-pocket expenses

Personal representative/executor’s fees

Surety bond (insurance policy)

Estate and inheritance taxes

If the will is contested, however, the cost of probate can rise dramatically. Situations like this sometimes lead to thousands of dollars in litigation costs.

How long does probate take?

The time it takes to complete probate varies widely and depends on circumstances of the estate. Probating small, simple estates will go faster, while the process for larger and more complex estates can drag on for years.

Usually the process can be completed in about six months if everything goes smoothly, but complications often arise.

There is no substitute for effective estate planning, but hiring a qualified attorney that specializes in probate is one of the best ways to avoid costly delays and close the estate promptly. 

What can complicate the probate process?

There can be any number of complications. Assets that were known to the decedent but unknown to others – and not included in a trust or in a will – can crop up. So can creditors.

If a creditor disputes a claim or if someone challenges the validity of the will, for example, it’s not uncommon for probate to take one year or even longer.

If the decedent owned property in multiple states, that almost certainly will make the process longer. There will be more paperwork involved – and, possibly, more attorneys.

Do I need to hire a probate attorney?

Not always. In some cases you can represent yourself rather than hire an attorney, but there are exceptions. In the state of Florida, for example, the law requires nearly every personal representative and guardian to hire a probate attorney.

While most states do not require the personal representative to hire an attorney, it is always wise to do so. Even in the simplest probate cases, legal issues can arise that significantly increase the time and cost of the process. Qualified attorneys are highly knowledgeable in probate law and can help one meet deadlines while avoiding mistakes that delay the probate process. 

Do all assets have to pass through probate?

No. The assets that require court authorization before titles of ownership can be transferred are known as probate assets. There are also non-probate assets that are transferred to a beneficiary upon death, either automatically or without court supervision. This most commonly occurs with property that allows an individual to name a beneficiary, such as payable-on-death bank accounts, retirement accounts, stocks and bonds and transfer-on-death deeds.

There are several other ways to arrange for property to be transferred outside of probate, for example, through joint ownership, a living trust and giving away property as a gift. Many states also allow a certain amount of property to be transferred outside of probate for free, or through a simplified probate procedure.

Are there any alternatives to formal probate?

Yes, several. Your location determines which options are available to you. More than half of the states have adopted the Uniform Probate Code (UPC), which allows for simplified probate procedures involving only paperwork and no court hearings.

The UPC introduced informal probate, an entirely paper-driven process that is faster and cheaper than traditional proceedings. This option is only available when there are no disputes between inheritors and there are no problems anticipated with creditors. Most states also offer simpler proceedings for small estates. The definition of small varies from state to state, and can range from $5,000 to $100,000.

A similar probate alternative called summary administration is available in Florida for estates valued at less than $75,000. Disposition without administration, another simplified probate option in Florida, is only available when the estate includes probate assets exempt from creditor claims and non-exempt personal property that does not exceed a set value. These alternatives have numerous pros and cons to consider, so it’s best to consult with a qualified attorney before deciding to stray from formal probate.

Should I plan to avoid probate?

While keeping your property out of probate can save your family time and money after your death, you should use your best judgment with probate-avoidance planning. If you are young and healthy, a will is probably all the estate planning you need.

That being said, keeping your most valuable possessions, such as real estate and bank accounts, out of probate will benefit your family the most in the long-run. You should also be sure to name beneficiaries whenever possible for property like real estate, bank accounts, stocks and bonds, retirement accounts and vehicles. This will allow your property to be transferred immediately to the beneficiary upon your death. This process is easy and completely free.

Other avoidance methods are more complicated and may require help from a lawyer. A revocable living trust, for example, can keep anything you own out of probate, but setting up and maintaining the trust may be costly and difficult for the inexperienced. A qualified estate planning attorney can walk you through your options to help determine what probate avoidance options will work best for you.

If you have questions about wills and their role in probate, see Frequently Asked Questions About Wills.

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