testimonial

Probate

Simply put, probate is a process where a court oversees that the deceased party's estate is distributed the way they wanted it (or according to state law).

There is a lot of misconceptions and confusing aspects of the probate process. The reasons for the misconceptions is often caused by listening to people who tell horror stories that may not be so true.  Here are some things that I have been told by people:

  • A will avoids the probate process;
  • Every estate must be probated;
  • Probating an estate costs tens of thousands of dollars;
  • If you don't have a will the state keeps all the assets.

All of those statements are WRONG!

I encourage you to get a copy of my free report titled "Common Misconceptions About Probate!"

Below, is an outline of a typical probate estate.

Common Situation-

Mom has died (dad pre-deceased her) with a basic will. The will states that all 3 kids are to be treated equally. Mom owns a home, some stock, cd's, and a small life insurance policy.  The net value of the estate is $600,000.

Mark The Lawyer's Approach To Probate-

I try to meet with the members of the family.  In this case I would sit down with all 3 of the children.  In our meeting I gather information about all of Mom's assets and liabilities.  I explain the entire process from beginning until end.  When we are through they will know:

  • What must be done with the will?
  • What must be done if there is no will?
  • What are the advantages of the probate process?
  • How we can obtain access to a safe deposit box?
  • How are final bills to be paid?
  • Who is responsible to see that final tax returns are completed?
  • Who assumes responsibility for care of any pets?
  • Who is entitled to what percentage of the estate?
  • What happens if one child had pre-deceased the parents?
  • What to do with life insurance policies?
  • How to handle 401K/IRA accounts?
  • Who is to be named executor (or administrator is no will)?
  • What are the duties of the executor or administrator?
  • What are the responsibilities of the executor or administrator?
  • What compensation, if any, is the executor or administrator entitled to?
  • Does a bond have to be posted with the Court?
  • Is the estate allowed to be under "independent administration" or "supervised administration"?
  • What County does the estate have to be probated in?
  • Can we use a small estate affidavit to liquidate any assets?

What Happens Next?

Once I have gathered all necessary information, I prepare all of the following documents in order to obtain court approval:

  1. Petition For Probate of Will and Letters Testamentary
  2. Affidavit of Heirship
  3. Order Declaring Heirship
  4. Oath and Bond of Representative
  5. Order Appointing Executor/Administrator
  6. Notice of Rights of Heirs and appropriate waivers

At that point, I have the necessary documentation to have the court appoint a representative of the estate.  Assuming there is no one trying to contest the estate or appointment, I will receive "Letters of Office"  which will allow the representative to start liquidating assets (such as stocks and bonds).  We also file the appropriate publications notices of the estate as required by state law.

The time frame for an average probated estate is around 7 to 9 months from beginning until end.  Some can get dragged out much longer, but if there are no unusual circumstances the process should be completed in this time period.

Finalizing The Estate-

Upon Completion of all necessary steps to the probate process, we are now ready to close the estate and have the representative discharged.  For the final court appearance, I will prepare:

  1. Order of Discharge
  2. Proof of Publication
  3. Clerk's Closing Certification
  4. Final Accounting
  5. Final Report
  6. Signed Consent of Fees & Receipt of Share

 

Cost Factor-

The filing costs for a typical probate estate is around $300.00 depending on which county it is in.   Attorney fees for probated estates can vary dramatically.  Some attorneys still try to base their fee off of a percentage of the total estate (although this is occurring less).  Attorney fees for most probated estates average around $3,000.00.  Depending on the circumstances, I have done probated estates for less than $1,000.00.