What is the Probate Process?
Probate is the court-supervised process that states use to distribute the deceased person’s assets to his beneficiaries after death. If the deceased person had a Will, then as part of probate, the executor must locate and prove the Will. If the deceased person died without a Will, known as dying intestate, the estate must also go through probate and the court will appoint an administrator of the estate. Many states no longer use the terms executor and administrator, but instead refer to such person as the personal representative of the estate.
As part of probate, notice is provided to the deceased person’s heirs and creditors. The costs of probate are paid and the debts of the deceased person’s estate are paid. The remaining assets of the estate are distributed to the deceased person’s heirs or beneficiaries.
The advantages of probate are: (1) it provides an orderly administration of the deceased person’s assets with a specific time frame by which all creditor claims against the estate must be made; (2) it provides a forum for all interested parties to be heard; and (3) it allows clear title to be transferred to the heirs or beneficiaries. The disadvantages of probate are: (1) it is costly and can be difficult for the people involved; (2) there are substantial delays in the assets being distributed compared to other alternatives; (3) the deceased person’s assets and debts become public record; and (4) if the decedent owns real estate outside the state of his domicile, a separate probate process may be started in the state where the other real estate is located.
In some circumstances, depending on the laws of the state of the deceased person’s domicile, the estate may be eligible for administration without court supervision. This is usually based on the estate being of smaller size and is limited to a certain dollar value of the estate. For example, in some states, if the deceased person’s estate is valued at less than $100,000, the heirs or beneficiaries may complete forms and follow procedures set by law to pay creditors and distribute the assets of the estate. This is sometimes referred to as a small estates exemption. The maximum dollar amount for an estate to qualify for a small estates exemption is different from state to state. For more information on how to administer a small estate, visit our Probate of Small Estates page.
How Much Does Probate Cost?
If your executor or administrator hires a lawyer as part of the probate of your estate, the fees and costs can be expensive. The laws of most states contain provisions regarding the amount of fees the attorney can charge to probate an estate. Depending on the laws of your state, the attorney may charge fees from a fixed fee schedule, a percentage of the value of the estate, or an hourly rate. If the attorney is involved in drafting letters to creditors and beneficiaries, changing title to property, reviewing correspondence, bills, and account statements, communicating with heirs and beneficiaries, reviewing provisions of the will, and handling phone calls regarding the estate, the legal fees can quickly add up.
How to Probate an Estate
For more information on how to probate or settle an estate, visit our Estate Administration page. If you are an executor, personal representative or administrator, check out our page with free tips and information for executors.
Do You Need an Attorney to Probate an Estate?
In most states the executor or administrator is legally permitted to handle the probate proceedings without a lawyer. Check the laws of your state to find out whether it requires an attorney handle the probate court appearances. Probate laws are complex and can be difficult to understand. Unless you are an attorney, you may even have difficulty finding books, manuals or guides written about how to probate an estate in your state. If you attempt to probate an estate without the help of an attorney, you may make costly mistakes that can be difficult or impossible to undo. You will also likely spend a tremendous amount of time on the process, which can interfere with your other responsibilities. If you need to hire a lawyer to probate an estate, discuss the attorney's fees and billing arrangements at length before hiring them. Ask the probate attorney to identify more routine parts of the estate administration process you may be able to handle independently to reduce the overall costs of probate.
Types of Property That Transfer Without Probate
Certain types of property do not require probate. Upon the death of the owner, the following types of property transfer directly to the new owner by operation of law:
Real estate and personal property when title to property is held in joint tenancy;
Property that passes by beneficiary designation on an account, policy or benefit program such as life insurance, bank accounts, brokerage accounts, bonds, pensions, annuities, and retirement accounts, provided the owner’s estate is not the named beneficiary; and
Property that comes within the small estates exemption and may be transferred by affidavit in accordance with state laws for administering small estates.
For more information on assets that pass without probate, see our NonProbate Transfers page.
Note, if no beneficiary is named on a bank account, brokerage account, retirement account, or similar type of account, the property will be subject to probate, even though the property could have transferred outside of probate if appropriate beneficiary designations were in place. Contact your bank for information on how to name pay on death beneficiaries on your bank accounts. Most retirement account custodians offer online forms that can be used to name a primary and contingent beneficiary on your IRA or 401k.
Guide to Probate
Whether you are executor or personal representative of a deceased person’s estate or simply want to understand how probate works, one of the best probate guides available is The Executor's Guide: Settling a Loved One's Estate or Trust. It explains how to probate a will and what to do if the decedent died without a will. It shows you how to look up the probate laws in your state without an attorney. While you may need to hire a probate attorney, The Executor’s Guide provides information on certain steps you can complete without a lawyer to reduce legal fees. It also provides suggestions for dealing with heirs, creditors, and other parties involved in the probate process.
The Executor's Guide: Settling a Loved One's Estate or Trust is a comprehensive guide on estate administration and probate but it is written in a straightforward manner without a lot of legalese. It provides answers to some of the most difficult probate questions, including what assets pass without probate, how to transfer title to estate property, what to do if the deceased had a living trust, and what actions need to be taken immediately versus those that can be deferred until later in the process. The Executor's Guide: Settling a Loved One's Estate or Trust is available from Amazon.com. Other bestselling probate guides are available on our Books About Probate page.
. It explains how to probate a will and what to do if the decedent died without a will. It shows you how to look up the probate laws in your state without an attorney. While you may need to hire a probate attorney, The Executor’s Guide provides information on certain steps you can complete without a lawyer to reduce legal fees. It also provides suggestions for dealing with heirs, creditors, and other parties involved in the probate process.