This past spring, my father passed away. It has been hard enough coping with my grief as I celebrate my first Father’s Day without him. However, I also have been dealing with several major financial decisions of his estate since I was named an executor in his will. Although honored that he would trust me to oversee his final wishes, I had no idea where to begin. As we work our way through the red tape, here is what I have learned and the problems of probate that we are now dealing with
What Is Probate?
Following someone’s death, probate is the legal process to settle their affairs. Once you file the paperwork, the probate court will review their assets and then validate the terms of the deceased person’s will. While many of the initial steps remain the same, it takes longer to complete if no will exists.
After the review, an executor, either chosen by the person before they passed or by the court, must administer the process. It is their responsibility to collect and take inventory of assets before paying off liabilities and distributing the remaining assets to the beneficiaries. Since the laws vary by state and several documents must be filed, many people prefer to hire a lawyer to handle the proceedings.
The Probate Process
Most people want an easy transition for their loved ones after they are gone. However, they may not realize just how much time and effort the probate process takes, especially if it is a large estate.
Establishing a Will
Usually, people provide documentation with instructions for the executor to distribute their assets after their death. However, there isn’t always a legalized will involved which makes things more complicated.
Fortunately, my dad had the foresight to review and update his will often. In the last year, he knew he was getting sicker and wanted to make sure everything was taken care of. So, last fall we had a consultation with our lawyer to finalize his arrangements. At this meeting, he named my mom and me as personal representatives for his estate. He also clearly communicated what he wanted, with most of his assets transferring to my mom. But, he also included a few specific instructions for existing and future grandchildren. Although heartbreaking, having this in place relieved some of the burdens of making decisions to settle his affairs.
Initiating the Probate Process
Immediately after his death, we knew that we had to file the will with the probate court to initiate the process. The laws and time frames vary by location. But in our state, you must do this within 30 days of death.
With everything still raw, we were in no frame of mind to handle contacting the local courts or filing paperwork. Therefore, we decided to let our lawyer oversee things to make things easier.
Settling the Estate
It has been nearly two months now, and the probate court just notified us that we can move forward. Since they have accepted his will as the true last testament, the court has appointed my mom the legal authority to act on his behalf.
Unfortunately, before she can distribute or sell any assets, everything has to be accounted for and transferred to her name. Since he had an extensive collection of projects and vehicles with titles, this is going to take some time. So, our next step is to inventory and estimate the value of all the assets of the estate. We are hoping to turn this list over to the lawyer within the next few weeks.
After we file the official inventory of his assets, we will then need to pay off any taxes and outstanding debts from the estate. Although I’m not aware of any large debts, we will have to file a final income tax return and conclude things with the IRS as well. If any other debts come to light, creditors have a limited timeframe to make claims. However, if my mom rejects any of them, we may need to settle things in court.
The Probate Fees
While it is more cost-effective to handle things yourself, there is a lot of paperwork and filing fees you have to pay during probate. Even without the attorney’s fees, you still have to pay court filing fees, creditor notices fees, executor’s fees, and private probate fees.
As previously mentioned, we hired legal representation to handle probate. However, convenience doesn’t come cheap. Some lawyers charge a flat fee or a percentage of the estate. Ours charges an hourly rate. Fees vary by experience and location, but you can expect a good probate lawyer to charge upwards of $150/hour for their services.
Is Probate Always Necessary?
Not all wills must be probated, so you can avoid it in certain situations. For example, if the property, accounts, or insurance policy has a beneficiary designation, it will transfer directly to their heir after death. Likewise, any assets held in a trust with a deed to transfer-on-death will immediately transfer to the named beneficiary.
However, it is more likely than not that you will need to settle things through probate court. Here are some of the most common assets that are subject to probate:
- untitled property
- assets with no beneficiary designation
- property with joint tenancy
- any property they solely owned
- personal items with high value (art, jewelry, vehicles, collectibles)
- accounts not designated as payable or transferable on death
- items passing to minors without a conservator or guardian
You can see how a will with specific instructions would be helpful. Luckily, my dad named these assets and beneficiaries in his will. Even if creating one doesn’t avoid the probate process, a will can guide your executor through it and make it easier.
What’s the Best Solution for You?
My dad was a careful man, yet he overlooked some important steps in his estate planning. He failed to list my mom as a joint owner on vehicle titles and kept certain assets only in his name. In addition to the hurt feelings, it also added time and confusion.
Rather than risk a mistake when emotions were running high, we turned it over to our legal counsel. Although his fees were substantial, it was a small price to pay for the convenience and the peace of mind knowing that everything will be done correctly.
But, only you can decide what is best for you and your circumstances. You may be able to avoid probate if you are willing to do the legwork or the deceased didn’t own many assets. But in my experience, it’s always better to get expert advice. When in doubt, I’d rather be safe than sorry.
- Why You Should Write Your Will Sooner Rather Than Later
- How To Prepare to be an Executor of an Estate (before they die)
- Estate and Future Planning: Importance of Drafting and Maintaining a Will
Jenny Smedra is an avid world traveler, ESL teacher, former archaeologist, and freelance writer. Choosing a life abroad had strengthened her commitment to finding ways to bring people together across language and cultural barriers. While most of her time is dedicated to either working with children, she also enjoys good friends, good food, and new adventures.