What does "going through
probate" mean? The
probate process begins with the admitting of the
deceased's will to the local court with jurisdiction over
probate matters. The purpose of this first court
appearance is to establish the domicile, or home, of the
deceased to ensure that the court has jurisdiction; to
indicate to the court that the will is the last will
of the deceased; and to give authority for the executor
or personal representative to act on behalf of the
estate. The remainder of the probate process involves
collecting the assets of the deceased; continuing any
business activities; investing and protecting the
estate's assets; paying any taxes, debts, and expenses;
and distributing all remaining assets according to the
terms of the will.
How much does the probate process
cost?
The cost of the probate process varies,
depending on the assets in the estate and the complexity
of the issues that the executor must resolve during the
period of administration. The probate process does not
have to be expensive, but it often is, where the
fiduciary is not adequately informed. Costs may include
probate filing fees, executor's fees, attorney's fees,
accounting fees, appraisal fees, and any other costs
incurred to identify the assets of the estate, to protect
and administer the assets, and to distribute them in
accordance with the will. Usually, one of the largest
costs is the attorney's fee, which may be based on the
size of the estate or its income. You should always ask
in advance how much the attorney will charge the estate.
How long does the probate process
take?
The length of the probate process
varies depending on the assets in the estate and on state
law. Some assets can be easily identified, collected, and
distributed. Other assets may involve ongoing business
interests, possibly located in more than one location,
which can require significant time to administer.
Do I have to use an attorney to
probate a will?
Most probate courts do not require an
attorney for a will to be probated. Many courts will
provide assistance to personal representatives who are
completing the process without the assistance of an
attorney. However, an executor or personal representative
should seek legal counsel for any but the most basic
estates to ensure that all fiduciary requirements are
fulfilled.
Does the court control my estate
during probate?
Although probate proceeds under the
supervision of a court, most states have less stringent
rules if an individual dies with a will. Only in extreme
and rare cases will the involvement of the court become
so great that it reaches the level of
"control."
Who has the right to know about the
assets in my estate?
Part of probate involves filing an
inventory (that is, a listing) with the court of the
assets and liabilities of the deceased. These filings
generally are open for public inspection. Certain kinds
of estate planning documents are not required to be filed
with the court and thus can be more private in nature. If
privacy with respect to the administration of your estate
is important to you, you may want to consider placing
your assets in a revocable trust during your lifetime.
Your assets would then be distributed according to the
terms of the trust, and your estate would not be open for
public inspection.
If I have a living trust, do I have
to have a will and file it with the probate court?
You generally need to have a will and
must go through probate, even if you have a living trust,
because there usually are some assets that have not been
transferred to the trust, are held at death, and are
subject to the terms of a will. The will enables you to
name an executor to handle any estate
administration matters in a manner consistent with your
wishes and allows you to waive any requirements that the
representative of the estate post bond. In addition, when
you name a representative in your will, he or she will
usually be given the power to file the required tax
returns and to make appropriate tax elections on behalf
of your estate.
A living trust cannot be used to name
your executor or a guardian for your minor children, to
place legal limitations on how your estate might be
administered, or to expand the scope of your estate
administrator when permitted by law.
My brother recently passed away, and
I have been named as the executor of his will. The will
is to be probated soon, and I have decided that I do not
want to serve as executor. What can I do?
You are not required to serve as an
executor if you do not want to. You should contact the
probate court in your state to determine the requirements
for declining to act as the executor. Some states require
written notice to be given to the probate court.
|
