The Probate Process
If you are here because a loved one has passed away, please know we express our condolences to you.
Our goal for the information provided here is to simplify any legal and administrative issues you might encounter during such a difficult time.
Probate is the 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.
The main purpose of probate is to provide 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 state law if there is no will.
Is probate really that bad?
You may have seen or heard that it is best to avoid probate at all costs and that it can be very expensive and time-consuming. This can depend on the situation you are in, but it is a public process that can be avoided with proper planning in advance.
If that planning wasn’t done or wasn’t done correctly, you will likely end up going through the probate process to administer the estate of the loved one. If you are unfamiliar with the process, the best thing you can do is get help from an experienced lawyer that will guide you through every step as quickly and with as little expense as possible.
How do I start the probate process?
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, the law will determine who has the highest priority. Typically it will be the surviving spouse or adult surviving children.
The individual that is chosen 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. To officially open the probate, advance notice to the interested parties is usually required. This can be avoided depending on the particular circumstances of the estate and family.
How is the executor chosen?
There are a few ways an executor or personal representative is chosen when going to probate court. Traditionally, the executor will be named in the deceased person's Last Will and Testament, and this will be recognized by the court. If there is no will or the person named in the will is unable or unwilling to serve as an executor, then the probate court may appoint an adult family member, trusted friend, or professional third party.
Does the executor get paid?
State law provides that executors may be paid reasonable compensation for the time and effort spent in administering the estate. However, some executors, especially if they are the surviving spouse or family member of the deceased, decline to be paid. A percentage of the value of the estate is normally paid as compensation to the executor for his or her time and effort of going through the probate process.
Could I be held personally liable for making a mistake as an executor?
Yes, being named executor holds a lot of responsibility. The probate statute contains a ton of complex legal rules and procedures that an executor must follow during the probate process. There are also many deadlines that an executor must adhere to when filing papers with the court and providing notice to interested parties. Failing to comply with these rules can make the executor personally liable for losses to the estate.
Will we need to go through probate if my loved one had a trust?
That depends. In most cases, if your loved one left their assets in a trust, you do not need to go through probate.
There is a big caveat here, though: The deceased must have ensured that all of their assets were adequately titled in the name of the trust or appropriately named the trust as the beneficiary in order to completely avoid probate.
We have encountered the situation multiple times. A recently deceased loved one did not have proper title and beneficiary designations due to the trust being out of date, assets changing, or laws changing. This leaves the loved one with the frustration and delay of probate proceedings, and their cost.
We do things differently. At The Lohman Law offices, PSC we have regular reviews of your estate plan and your assets so that the planning you do now works as planned later.
What assets are subject to probate?
As a general rule, only assets owned solely in the name of the deceased person are subject to probate.
Assets that are designated as “joint tenants with right of survivorship,” “transfer on death,” and “pay on death” are not subject to probate and pass by operation of law to the designated person or surviving joint owner.
There are some situations in that an asset would otherwise pass by title or beneficiary designation to a specified person that is subject to the probate process. Give us a call if you have questions about your specific situation.
How are probate assets distributed if there is no will?
If there is no will or trust to dictate who receives what, the probate assets will be distributed according to state law. The state legislature will take their best guess as to who you would want to receive your assets.
The general rule is that your surviving spouse and your children will split your assets if there is no will in place. 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.
It gets tricky when your surviving spouse is not the parent of your surviving children; or if you have a surviving spouse and 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 each case).
It’s easy to see how things can get complicated rather quickly when you rely on state law alone instead of having a plan in place upfront.
How long does probate take, and how much does it cost?
If there are no delays at all, probate proceedings can take 6 to 12 months. Some probate cases can drag on for two or more years if the beneficiaries are disputing or if the deceased left property in multiple states.
When it comes to the cost of probate, every case is different. Some of the typical costs involved in probate cases include court filing fees, attorney fees, appraisal fees, professional fees like tax preparation, executor compensation, document certification, recording fees, and more. Some fees can be a percentage of the probate assets, while other fees can be based on an hourly or customary rate.
How do I find the best attorney for my probate case?
This can be tricky. You will want to be very careful when choosing the right attorney. Every attorney is different. There are a ton of lawyers out there who can handle probate cases, but a lot of those don’t usually do them as their main practice. This can lead to many issues throughout the process, which could delay the resolution and increase your costs.
Also, please know that you are not required to hire the attorney who drafted the will! Just because that lawyer drafted the will does not mean that they are the right fit for your probate case. You need to be comfortable with your attorney and confident that they are the right attorney for you.
What do I do now?
If you are ready to get started with the probate process after the passing of a loved one, please contact us, and we will help determine your next best steps.
We are here to help make this process as quick and easy as possible for you, and we look forward to relieving any administrative or legal burdens you may face during this difficult time of loss.
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