What Is Probate?
If you are looking into making a will, no doubt you have heard about probate and, specifically, how to avoid it. However, probate is not necessarily bad. Probate pays off a deceased person's debts and properly transfers their property to their heirs.
Essentially, a probate court looks for new owners for your property. If you do not name them in a will, they must take the time to find the owners.
But there are disadvantages to probate. Probating an estate is costly and takes a significant amount of time. However, the more you learn about probate, the more you can plan to speed up the probate process and even avoid it.
What Is Probate?
Probate is a court-supervised procedure of administering a deceased person's estate. The probate process involves authenticating a will, paying off debts, and distributing assets to beneficiaries.
Probate Without a Will
If the deceased person died without having a will, they die "intestate." In that situation, the court follows state intestacy laws to distribute the assets of the decedent.
Probate With a Will
If the deceased person has a will, first, the court determines that the will is valid and authentic. Then the court appoints a personal representative, typically the person named as a personal representative in the will to administer the estate.
How Does Probate Work?
There are several steps to the legal probate process:
1. Submit a Death Certificate
First, an executor or representative of the estate will start the probate process by filing the death certificate with the probate court along with the will. If there is no will, then the decedent is intestate. The court initiates procedures for intestate probate, which take longer than if there was a will. If there is a will, the process is more streamlined.
2. Validate the Will
If there is a will, the court authenticates the will to make sure it is the actual, intended will of the deceased, called a testator. They also check that the will has the required witnesses and notary as their state law requires.
If your will has a "self-proving" affidavit, this will speed up the probate process. This affidavit, signed by the witnesses in front of a notary, states that the will is authentic. This eliminates the step of having the witnesses testify to the will's authenticity in court.
3. Appoint a Personal Representative
The next step is for a probate court judge to approve someone to administer the estate. The judge appoints the executor or personal representative named in your will. If there is no will, the judge will appoint someone, usually a family member, to handle the estate.
The personal representative will receive "letters testamentary," which is essentially the probate court giving the personal representative permission to handle the decedent's estate. The personal representative uses these letters to contact banks and attorneys and manage the estate administration.
4. Post a Bond
Because a personal representative will handle money, property, and assets, the court may require the personal representative to post a probate bond. The estate pays for the cost of the bond. However, you can waive the bond requirement for your personal representative in your will. This will save your estate an additional expense.
5. Alert Creditors and Beneficiaries
The personal representative now has the task of identifying beneficiaries and notifying creditors of the probate administration. The creditors then have a specified time frame to submit claims against the estate. If they do not respond during that time, they cannot collect on those claims.
6. Appraise Property and Assets To Determine the Value of Your Estate
The personal representative also must determine the value of all probate assets. That may mean getting real estate appraisals, making an inventory of personal property, and valuing assets. The personal representative may hire appraisers to determine property values.
7. Pay Valid Debts
The first debts usually paid from your estate are funeral expenses, last illness expenses, and taxes. The personal representative then pays any valid creditor claims. The personal representative can dispute or settle creditor claims on behalf of the estate.
8. Distribute Assets to Beneficiaries
After paying estate debts, taxes, and claims, the personal representative distributes the remaining assets to the beneficiaries named in your will. If there is no will, then your heirs receive distributions according to state intestacy laws.
9. Close the Estate
To close probate, the personal representative files a final accounting with the court. The final accounting reports all the assets of the estate and income generated on those assets. The report also details all debts paid and distributions made to beneficiaries or heirs.
When the court accepts this report, they discharge the personal representative from their probate duties and formally close the probate estate.
What Goes Through Probate?
Property and assets that are only in your name are part of your probate estate. For example, if you owned a house titled exclusively in your name, that home's value adds to your probate estate total. So, it is helpful to understand what probate property is.
Many assets transfer outside probate—for example, a bank account with a "transfer-on-death" (TOD) designation. If you name a transfer-on-death beneficiary, they receive the bank account upon your death. Therefore, it does not go through probate. Similarly, life insurance benefits go directly to your named beneficiaries, so they are not part of your estate.
Other property and assets that do not go through probate are:
- Bank and investment accounts with transfer-on-death beneficiaries
- IRA and retirement accounts with transfer-on-death beneficiaries
- Real estate owned in joint tenancy
- Life insurance policies with named beneficiaries
- Lifetime gifts and distributions
- Any property held in a trust
Examples of property or other assets that do go through probate are:
- Any bank or financial account, stock, or retirement account in your name only
- Real property titled in your name only
- Cars, boats, or RVs titled in your name only
Beware, however, if you fail to name a beneficiary on any accounts, those accounts will fall into your probate estate. Additionally, suppose a beneficiary you name on an account dies before you. In that case, that account may not have an owner and become part of your probate estate.
Again, a probate court handles property that does not have a named owner. So, if you plan ahead, you can significantly reduce your probate estate.
How Long Does Probate Take?
Probating a simple estate with no issues can take anywhere from nine months to a year. However, if there is a will contest or large estate, it can take two years or longer.
How Much Does Probate Cost?
There are many fees and expenses in probating an estate. Typically, probate costs range from 3-5% of the estate's value. Here are some examples:
- Filing Fees – The court charges these fees to open an administration, provide letters testamentary, and close the estate. The costs could range from $35 to hundreds of dollars.
- Probate Bond Fees – This is a fee that the court charges your estate for the personal representative to acquire a bond. However, you avoid this by waiving the bond fee requirement in your will.
- Attorney and Personal Representative Fees – Many states provide guidelines for what a personal representative or attorney can charge. Some states set the fees based on a percentage of the estate.
- For example, in California, if your estate is worth $200,000, your estate may pay $7,000 in standard probate fees. And California also allows an attorney and a personal representative to collect fees, so they could receive up to $7,000 each.
- Generally, friends or family members who serve as your personal representative waive the fee. However, they are still entitled to it.
- Reimbursement Fees – Your personal representative gets reimbursement for out-of-pocket expenses for managing your estate. For example, they may hire appraisers, movers, accountants, or other professionals to administer the estate.
How Can I Avoid Probate?
The best way to avoid probate is by not having any probate property. That way, your estate can qualify under your state's simplified probate procedure. You can skip a long, drawn-out expensive probate process by filing affidavits with the probate court.
Here are four ways you can avoid probate:
1. Title Your Real Property With a Joint Owner
If titled correctly, owning a property with another owner can take your interest in the property out of your probate estate. When you die, the ownership of the property automatically transfers to the surviving owner. Those ownership types are:
- Joint Tenancy With Right of Survivorship – This is property owned by all the owners. When one of the owners dies, the property goes to any surviving owners.
- Tenancy in the Entirety – Valid in some states, this is property ownership only between husband and wife. If one dies, the surviving spouse receives the property outright.
- Community Property With Right of Survivorship – This is property ownership only recognized in community property states. It is ownership among husband and wife. The surviving spouse receives the property once their spouse dies. The property is not part of the deceased spouse's estate.
2. Establish a Revocable or Living Trust
A revocable or living trust is a legal structure to bypass probate and give your property and assets to others. When you title property in the trust's name, the trust becomes the owner of the property. It is no longer considered part of your estate even though you can use the property for your benefit.
After your death, you can instruct your trustee to distribute the assets to your beneficiaries outright. Or the trustee can hold the assets until your beneficiaries become adults. With a revocable trust, you can move property in and out of it during your lifetime or revoke it altogether.
3. Name Beneficiaries
Make sure you name beneficiaries on all your bank, retirement, and investment accounts, as well as any life insurance policies. In addition, have backup beneficiaries listed in case your first named beneficiary predeceases you.
4. Give Away Property During Your Lifetime
The less property you own individually, the less probate property you have. You can give gifts to charities, family members, and friends to reduce your estate.
How Can I Speed Up the Probate Process?
If you can't avoid probate entirely, you can reduce the length of the probate process significantly by taking these three steps:
1. Make a Will
First, have a valid will signed according to your state's laws. If you have a will, you have named beneficiaries for your property. A court does not have to go through intestate succession laws to determine who will inherit your property.
2. Use a "Self-Proving" Affidavit
Second, if your state allows, use a "self-proving" affidavit, so the will is already authenticated. The court does not have to contact the witnesses to testify as to the will's authenticity.
3. Reduce Your Probate Estate
Third, reduce the size of your probate estate following the steps above. The smaller your estate, the more likely you will fall into a simplified probate procedure. Most states provide streamlined estate administrations for small estates.
For example, in 2020, if your estate was less than $166,250 in California, you could skip formal probate. Instead, the personal representative files affidavits to the court.
The more you know about probate, the more you can plan to streamline or avoid it. You can save your family considerable time and money with the help of a local estate planning attorney to develop a comprehensive estate plan.
Can I Solve This on My Own or Do I Need an Attorney?
- Complex probate situations usually require a lawyer
- A lawyer will take these matters seriously and enforce protections
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations