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Probate and Estate Administration

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Probate is the legal process of transferring title of the Decedent’s (the one who passed away) assets from the Decedent to the legatees under the Will or to heirs. For probate assets, probate generally is necessary because in order to transfer assets the signature of a Personal Representative is ordinarily required.

When someone has passed away they are obviously no longer able to sign. Therefore, the court appoints a Personal Representative (a person chosen by the Decedent in the Will, or as set forth by statute) to provide that signature and “stand in the shoes” of the Decedent.

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include personal representative commissions, attorney’s fees, accounting fees, probate fees, appraisal costs, and surety bonds. These typically add up to 5% to 8% of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved. One way to avoid probate, is by utilizing a Revocable Living Trust, Read More. 

In Probate, several things happen:

Admit the Will to Probate – This deals with the facts of the Decedent’s death, facts about the Will such as proper execution and whether or not the Decedent named a Personal Representative. Once the Will is admitted to probate, this Will is the one followed by the Personal Representative and the Register of Wills or Court.

Appoint a Personal Representative– This is the person who will carry out the Decedent’s directions as they are written in the Will. The Personal Representative has three main jobs:

  • Collect or account for all of the assets in the Decedent’s estate;
  • Pay any outstanding debts owed by the Decedent; and
  • Distribute the remainder of the assets according to the directions in the Decedent’s Will.

There are other miscellaneous jobs the PR may, or may not, need to do depending on the specific needs and assets. For example, the PR may need to:

  • Open a bank account in the name of the Estate if there is money that will be paid to the Decedent;
  • Locate heirs;
  • Resolve disputes;
  • File tax returns (final 1040, a 1041 for money paid to the Decedent’s estate, and a 706 for estate tax);
  • Close accounts (bank, credit cards, paypal, ebay, facebook, etc.); and
  • Determine Estate assets and values.

Issue Letters of Administration – These letters are the official documents issued by the Register of Wills or Court naming the Personal Representative and declaring he or she has been appointed to handle the Decedent’s affairs and transfer assets accordingly.

Only “probate assets” will need to go through the probate process. Therefore, if the Decedent died owning no assets that are subject to the probate process, then probate is not necessary. This is commonly the case when a person did not own a home and all of their assets passed by right of survivorship, by beneficiary designation (TOD and POD accounts), or by utilizing a Revocable Living Trust as their primary estate planning vehicle. Read More.