Probate

What is Probate? Most people know it has something to do with a process that happens at death. But they really know little about it.

The Probate process is to determine what a decedent owned at death, what the decedent owed to creditors, pay them, then, as quickly as possible, distribute what’s left to heirs. The fees charged to the estate are set by law: Four percent (4%) of the first $100k, three percent (3%) on the next $100k, etc. This fee is paid to both the executor/administrator and the attorney. There are also court fees which can run several thousand dollars. As you can see, the process can be pretty expensive. Some estates are not subject to probate, for example: assets passing to a surviving spouse are exempt, and assets passing to a named beneficiary of a retirement plan or insurance policy are exempt, if there is a joint tenancy or trust those assets also are exempt from Probate. The Probate process will still be required if there is ONLY A WILL.

It sounds simple but the devil is in the details. The probate process begins with lodging the will with the county where the decedent was domiciled. Then the Executor/Administrator files a petition with the court for appointment to manage the estate. The probate must be noticed by printing the death in a legal newspaper. This is to alert creditors that they have four months to make a claim. After a court hearing, the court will issue Letters, which allows the Executor/Administrator to begin Administration.

During estate administration the Executor/Administrator must keep detailed records of the inflow and outflow of income as well as a record of asset values, and liabilities. Sales of assets may require court permission. At termination of the probate process, the Executor/Administrator will file a detailed accounting and ask that the probate be terminated. At this point, distributions can occur to the heirs, attorneys and Executor/Administrator. Often a reserve is held back for a year to cove unforeseen expenses.

Here at Traditions Law, we are well prepared to guide you through the Probate process.