Frequently Asked Questions about Probate

What is probate?
Probate is a court-supervised legal process that takes places after a person dies. Probate involves the recognition of the deceased person’s (legally known as the decedent’s) will (or the lack of a will), the appointment of an executor or personal representative who has a duty to collect the decedent's property, to pay the decedent's debts from the decedent’s property and then to distribute the remainder of that property to the decedent's heirs. Probate can be done with will or, if the decedent did not have a will, by intestacy. (“Intestate” comes from Latin and simply means “having no will.”) incapacitated.
What kind of assets have to go through probate?

Probate only applies to assets a person owns in his or her name alone: for example, a bank account owned by John Smith with no co-owners. Assets held jointly, assets with beneficiary designations, and assets held in trust do not have to go through probate.

When do I need a probate attorney?

In short, you need a probate attorney when you have lost a loved one and have been appointed the executor or personal representative of their estate. 

Many people are tempted to handle the probate process themselves without an attorney. In some cases, this works; however, an attorney can ensure that you don't miss any deadlines or requirements and can explain the whole process to you. The probate process can be expensive, time-consuming, and confusing. If you bring in an attorney at the beginning of the process, you can save yourself time, money, and frustration. 

What does the probate process look like?

The process begins with filing the will of the deceased and obtaining court recognition of the will. The court will formally appoint the executor (sometimes also called a personal representative) to oversee the process of paying the deceased’s bills, filing taxes, and distributing the deceased’s property according to the instructions in the will or according to state intestacy codes (which are like a will the state has written for people who did not write their own wills).

What's so bad about probate?
You may have heard friends or relatives complaining about the probate process when they have had to go through it. So what's bad about it? In short, it's time-consuming and expensive.
 
Even very simple estates will take about 8-12 months to close. Estates that have debts, family disagreements, heirs who are under 18, real estate, or significant assets take much longer. Probate administrations of 2-3 years are not uncommon.
 
Probate can also be expensive. There are court fees, of course; there are also attorney’s fees, which can be costly. If there is plenty of liquidity in the estate; if the heirs have good cashflow; if the family members aren’t fighting and there is no disagreement over what to do with real estate, probate doesn’t have to be a big deal. In that case, the estate can pay for an attorney to deal with the administration.
 
With proper planning before death and good legal advice after death, probate exposure can be minimized and probate administration can often be avoided entirely.
How much does probate cost?

Court fees will depend on the size of the estate and the state in which you're administering the estate. Legal fees will usually be charged hourly; you should expect to budget from $1000 to $5000 for a minor estate, and more depending on how complex an estate is. Ask your lawyer for an estimate of the total fee.

How can I avoid probate?

Good estate planning can often ensure that your estate avoids probate entirely. Don't skimp on estate planning- lawyers charge less for even complex estate plans than they will for administering a complex estate in the probate courts.

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