Probate is the court-supervised process that takes place after the death to legally transfer title to assets left in a will, or, if no will, property subject to probate. During the probate process, the the following takes place:
- Deciding if a will exists and is valid;
- Figuring out who are the decedent’s heirs or beneficiaries;
- Figuring out how much the decedent’s property is worth;
- Taking care of the decedent’s financial responsibilities (including payment of all debts); and
- Transferring the decedent’s property to the heirs or beneficiaries.
An executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer and there are very specific rules and procedures that must be followed.
All assets in probate are subject to statutorily-mandated attorney and personal representative fees (in addition to court costs). These fees can amount to up to 8% of the value of the decedent’s estate. Probate is also a public process, meaning anyone can get information about the probate case and access private, family matters.
Many estate plans are structured specifically to avoid the cost, time and public nature of the probate process. A common alternative to a will is a revocable living trust. Trusts accomplish the goal of transferring assets to whomever you want, while avoiding the probate process.
If are interested in discussing an estate plan that avoids probate or if you need assistance with the probate process, contact an experienced estate planning attorney.
Note: For estates under $166,250, probate is not required and there is a simplified procedure to transfer an estate.