What is Probate?
Understanding the probate process is important if you’ve been tasked with executing a will or are involved with settling the estate of someone who’s passed away. There are many steps to probate that involve interacting with courts, attorneys, administrators, creditors, and many other key figures when it comes to assets and estates.
What does probate mean?
Probate is the process that takes place in the legal system through the probate court when someone dies. It involves the settling of estates, executing of the will, settling of debts & taxes, and transfer of assets.
What is a probate court?
Probate court is a court that specializes in probate and deals with administration of estates. Probate courts are used in the distribution of assets, authenticating wills and assigning executors or personal representatives, preventing wrongdoing by assigned executors, and dealing with other matters of administering estates.
What is a probate attorney?
A probate attorney is an attorney who specializes in probate law and works with families and executors to navigate the probate process in court.
Do you have to go through probate if there is a will?
Probate is usually required both with a will and without a will, since things like assets and taxes will still need to be paid and settled. There are many documents and financial steps that need to take place after someone dies.
What is the probate process?
The probate process is usually completed by following these steps:
- Apply to the court to initiate the probate process.
- Submit the will to the probate court for authentication.
- The executor or personal representative is appointed by the courts, this person is usually named as such in the will. If the will does not name an executor, the court will usually choose the next of kin as the representative.
- The executor or representative locates and takes possession of the deceased’s assets during the probate process. Maintaining insurance, mortgage payments, and any required payments is important to prevent property from being foreclosed on during the probate process. Thorough investigation into potential assets is important since many people have assets that they don’t let others know about. 6. Documentation and inventory of assets is collected during this time to create a full picture.
- Assets are valued, usually through court-appointed appraisers or through appraisers selected by the executor. Once assets are valued, many states require a document be submitted that includes the asset, the value, and explanation on how that value was reached. Check with your state to determine if you can appoint an appraiser or if one will be assigned to you.
- Creditors are identified and notified of the death. The executor is responsible for identifying and notifying all of the deceased’s creditors. Many states ask you to submit a notice in the newspaper to notify potential creditors of a death. It’s a good idea to create a memorial website in addition to this to notify both creditors and potential heirs of a death so that they’re included in the probate process.
- Debts are paid. All valid debts are paid for from the deceased's estate. Executors can file letters of dispute with creditors if they feel the claims are invalid. (If there are no estate funds to cover debts or taxes owed, no cosigners, and no one else tied to the debts, the creditors will usually be forced to write it off. If you’re unsure, you’ll want to get in touch with an attorney.)
- Tax returns are filed. The executor will need to prepare and file the personal tax returns for the deceased for the year they passed away. If any estate taxes are due, the executor will need to prepare and file these as well. Any outstanding taxes are paid for by the deceased’s estate.
- Assets are distributed to rightful heirs. This step takes place after all of the previous steps have been completed, since some assets might be used to cover outstanding debts or taxes. The executor will need to submit a request to the court for permission to distribute the assets. The court will usually require the executor submit documentation proving previous steps have been completed and all financials have been dealt with.
- If the deceased did not leave a will or last testament, most states have the remaining assets go to the next of kin. The order of inheritance can vary state to state.
On average, it will take around 570 hours of effort on the part of the executor to settle an estate. The entire process of settling an estate takes, on average, 16 months. The amount of time can vary depending on the size of the estate, the state of the will, family involvement, and any issues or controversies that might arise along the way. Families should be prepared for the possibility of internal conflict and drama when it comes to settling estates, with almost half of families experiencing this along the way.
It’s also important to note that the average amount of money spent on legal and accounting fees for the settling of estates is $12,400. This number can vary depending on the size of the estate, the length of the probate process and the conflict surrounding it.
Costs and Fees
Many states have entirely different fee structures (with some states having no set laws on fees), so you’ll want to ensure you do your research on your state before jumping into the probate process.
Here are some fees to keep in mind when going through probate:
The amount an attorney can charge will usually be set by the state.
The amount an executor is paid is usually set by the state, unless it’s otherwise stated in the will. If it’s not explicitly stated in the will, the state’s law will take precedence. A fee structure might exist depending on how large the estate is, here is California’s fee structure as an example:
- 4% for the first $100,000
- 3% for the next $100,000
- 2% of the next $800,000
- 1% of the next $9,000,000
- .5% of the next $15,000,000
- Court determined fee for estates over $25,000,000
Court fees are set by the state and usually depends on the size and complexity of the estate being settled. You should expect to pay at least a few hundred dollars to the court in fees.
These fees depend on the size of the estate and the complexity of the assets in the estate. If an estate has a lot of complex assets (different bonds, accounts, stocks, etc.) then the accounting fees will be higher. You’ll also want to keep in mind fees for preparing and filing any taxes.
You’ll likely need to hire an appraiser to appraise the value of property and assets in an estate since valuation is a requirement in the probate process. You can expect to pay anywhere from a few hundred dollars to a few thousand dollars depending on the assets and whether or not they’re personal or business related.
Bonds are usually paid for by the estate and are put in place to protect the interested parties in settling an estate. Many judges will require bonds be posted, even if it’s not a requirement in the will.
Taxes, postage, traveling, transportation, etc. are all different fees that could crop up during the settling of an estate. The amount of fees will depend on the complexity of the estate, the executor, the location, and other various factors.
If you’re overwhelmed by any of the steps above, or feel that it’s simply too much for you to handle, it might be worth looking into probate attorneys near you. Probate attorneys and probate lawyers can help you successfully navigate the probate process and ensure that you’re covering all the necessary steps.
It’s also worth noting that many times, estate assets can take well over a year to settle and pay out. If you’re banking on estate assets to cover the expenses of a funeral, you’ll likely be unable to access the funds in time to pay for the funeral. If you’re struggling to pay for a funeral or cover expenses related to a death, creating a memorial fundraiser is a great way to raise funds to cover unexpected costs.
If you’re involved in the settling of an estate and want to ensure you’ve done everything you need to, Ever Loved offers a free checklist covering everything you need to do after someone dies.