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Probate can significantly stall the efficient administration of an estate. Estate planning often includes steps for minimizing probate such as owning assets in a revocable living trust. In a trust-based estate administration, a trustee oversees the distribution of assets in a timely and efficient manner upon the death of the settlor, often without the need for court involvement.
In estates that need to open probate, estate settlement is often delayed by the court process, which is formal and dependent on the schedule of the probate court.
- Filing the will, if any with the proper probate division
- Petition to appoint Executor (in the case of a Will) or Administrator for the estate (the executor/administrator is also called the “personal representative)
- Notice by certified mail to all interested parties (e.g. the statutory next-of-kin) prior to a hearing on the appointment of the personal representative and, if applicable, the allowance of the Will, even if such relations are not named as beneficiaries under a decedent’s will.
- Inventory and appraisal of estate assets
- Payment of estate debt
- Sale of estate assets
- Payment of taxes
- Final distribution
Frequently Asked Questions
I have a will, why do I need probate?
Having a will has no impact on whether an asset must be probated. Probate is needed to clear legal title to certain types of assets. A will determines who manages the probate assets and the manner of the ultimate distribution of probate assets.
What happens if someone objects to the Will?
Will contests occasionally occur during the probate proceedings and can be costly and time-consuming to litigate.
In order to contest a Will, one has to have legal “standing” to raise objections. This usually occurs when, for example, some members of the family are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will.
Does probate administer all property of the deceased?
Certain types of assets are non-probate assets and do not go through probate. These include:
- Property owned as “joint tenants with right of survivorship” pass to the joint owners by operation of law and does not go through probate.
- Retirement accounts such as IRA and 401(k) accounts typically have designated beneficiaries and pass directly to the named beneficiaries.
- Life insurance policies usually list surviving beneficiaries.
- Bank accounts with “pay on death” (POD) ore “transfer on death” designations or “in trust for” designations bypass probate.
- Property held in a living trust. Legal title to such property passes to successor trustees without having to go through probate.
Fees for Personal Representatives
Executors and Administrators are entitled to reasonable compensation for the work undertaken to settle probate matters, subject to the approval of the Court. Personal Representatives are entitled to retain an attorney and an accountant to advise and assist him with his or her duties, to be paid from the assets of the estate.
Cost & Duration of Probate Administration
The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property. Conflicts with alleged creditors over the debts of the estate can also add significant cost and delay. Court-approved expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds. Most estates are settled though probate in about 6 to 18 months, assuming there is no litigation involved.