Probate, a word that is confusing or even distressing to many people, is simply the legal process through which a will is recognized and a personal representative (executor) is officially appointed to administer an estate. The personal representative is tasked with tying up all loose ends and distributing assets to beneficiaries as predetermined by the decedent. The length of time needed to complete probate is dependent upon the size of the estate, the complexity of the holdings, local regulations, and the schedule of the probate court.
Even when probate is avoided entirely because all assets were either jointly owned or transferred to a living trust during the deceased’s lifetime, however, the personal representative is still responsible for distribution of assets. At times, civil lawsuits make probate much more difficult. Such lawsuits may stem from any number of causes, but the most common one is disgruntled heirs or potential heirs who feel they are not receiving the inheritance they are entitled to.
Engaging an adept probate and estate administration attorney, such as Thomas Keating, Esq., to assist you will make the process smoother and more efficient. It will also protect you from tangling in the weeds of legal complications.
Steps Involved in Probate
While each probate process is individualized, most involve:
- Filing a petition with the appropriate probate court
- Notifying heirs under the will (or statutory heirs if there is no will)
- Appointing a personal representative or administrator of the estate
- Taking an inventory and appraising estate assets
- Paying all estate debts to rightful creditors
- Selling of estate assets where necessary
- Paying any applicable estate taxes
- Making a final distribution of assets to any and all heirs
- Certain types of assets are not required to go through probate, including:
- Property owned jointly with “right of survivorship”
- Retirement accounts with designated beneficiaries
- Life insurance policies
- Bank accounts with POD (pay on death) of “in trust for” designations
- Property owned by a living trust
At Keating Law, PLC, our estate planning, and probate and estate administration attorneys are we are well-prepared to help you protect your assets so that, when the time comes, your loved ones will receive the total value of your assets.
Cost and Duration of Probate
How much probate costs and how long it takes are both variable, depending on the value and complexity of the estate, the location of any property owned, and whether a will exists. Familial or creditor disputes and/or contested wills will undoubtedly prolong the procedure and add to its cost. Generally speaking, probate takes between 9 and 18 months unless there is litigation involved. As far as costs are concerned, probate expenses include: executor fees, attorney and court fees, surety bonds, and appraisal costs. In the majority of cases, these fees add up to between 2 and 7 percent of the total estate value.
Payment for, and Duties of, a Personal Representative
As an executor (another term for personal representative) you are entitled to be reimbursed for any monies you spend during the process of estate administration. Apart from that, you may be entitled to statutory fees awarded by the court. Once again, the amount of such fees varies depending on the size and complexity of the estate and its location. In some cases, a specific fee for the your duties may have been stated in the will.
As executor, you are required to carry out your duties ethically. You can be held liable for any mismanagement that takes place. This is another important reason for you to retain a qualified probate and estate administration attorney.
Legal Grounds for Contesting a Will
Though it is not uncommon for those who expected to inherit (or to inherit more than they are slated to receive) to feel disappointed, frustrated and angry, there are only four legal grounds for contesting a will:
- The will wasn’t signed with proper legal formalities
- The testator lacked mental capacity to make a legitimate will
- The testator was unduly influenced (or coerced) into making a will
- There was fraud or forgery involved in the procurement of the will
Many wills are contested during probate proceedings. This is an expensive process to litigate, however, and only those who have legal standing are permitted to raise objections to the distribution terms of a will or to the choice of executor. In order to have legal standing, you must either demonstrate that you were named in the will, should have been named in the will, or that you would have received something of value if the person had died intestate (without a will).
To contest a will you must also be considered by legal statute to be an “interested person.” Probate Code defines interested persons as children, heirs, spouses, creditors or any others having a claim against the estate, including those who were beneficiaries of a prior or subsequent will. Clearly, to contest a will, or to preserve a will that is being contested, it is important to have a competent attorney to advise you of your rights and protect your interests.
Why You Should Contact Keating Law, PLC
Probate and estate administration can be complicated. Even in simple cases, it is always wise to have a skilled probate and estate administration lawyer at your side to guide you through the process. The larger the estate, the more complex the financial and legal issues; the more intimate your relationship with the deceased, the more complex the emotional impact. It is a good idea to have a legal professional with a clear head assist you as you make decisions that will have long-term consequences. We are dedicated to making a stressful process as easy as possible for you, no matter what the particular circumstances. Don’t hesitate to contact us through the convenient form on our Keating Law, PLC website or by calling 586.501.8399.