Information about: Legal

Probate, The Truth About Death

Intro

 aloshbennett

“Life is either a daring adventure or nothing.”

– Helen Keller

My uncle Bob designed and wrote the children’s games on the backs of Kraft boxes. Playfulness was in his soul. He was a kind, balding man with a wide, soft smile. Whenever we used to visit, my sister and I would bolt from our parents’ car to the front door of his prairie home in Wisconsin, excited to hear his latest quip.

“What kind of cheese is not yours?” he quizzed us.

“Nacho cheese!” we shouted.

When I was a teenager, Uncle Bob’s doctor told him that he had esophageal cancer. He fought the disease long and hard, always with kindness and peace.

After his diagnosis, Uncle Bob quickly lost weight and became visibly frail. One of the last times I saw him, at a holiday party at my grandmother’s house, he pulled me aside in the hall.

“JP, I heard from a little bird that you’ve been praying for me.  Thank you,” he said.

He smiled deeply and put his hand on my shoulder.

A few months later, he was gone from our family, and gone from this world.

Death can be a harrowing part of life, particularly for the family left behind.  The sense of deep, painful agony can last for months, and sometimes even years.

This makes it challenging to work through probate, the process of transferring assets from a deceased family member to his or her family and friends.

This article will, in clear and understandable language, walk through the first couple of steps of probate. In the next article, we’ll address the step-by-step timeline for probate.

You’ll walk away with the best tools needed to address the challenges of probate.  You’ll feel confident about the process while also having some breathing room to mourn.

Through both articles, we’ll address the following questions:

  1. What is probate?
  2. How long does probate take?
  3. What are the basic steps of probate?
  4. What are some real life examples of probate?

 

What is Probate? 

Legal jargon can feel overwhelming.  My father was a lawyer and I still tighten when someone mentions the law.  Stick with me through this post.  We’ll go through the steps of the legal process of probate in basic easy to understand language.

By the end you’re know the overarching steps and where you can take action to have immediate impact for your family.

Let’s get started.

Following the passing of a loved one, a family often needs to think through how to distribute a deceased person’s house, car, possessions, retirement funds, etc.  This is probate.  It is the legal process of distributing an individual’s assets after they die.

The reason it is a legal process is because the state government taxes a large portion of these assets prior to their distribution.

Following the death of your loved one you will likely work with a lawyer to formalize death certificates and other end of life activities.  This lawyer will inform you that you will need to go to probate court.  This is the court where the state government will review the deceased’s assets for tax purposes.

To prepare for this court meeting your lawyer will draft up legal probate documents.  The documents are different by each state.  A will (if your loved one had one) will also be reviewed during this process.  Take those documents to your local probate court and file to open probate.

Is probate necessary?  Can you get around it?  Regrettably you can’t avoid probate.  Unless your family set up a trust for all of the loved one’s assets you will need to proceed through probate court.

 

The “Personal Representative”

Think of the personal representative as the ambassador of the probate process.  She will be the main point of contact for the court as the probate process proceeds.  She will also be responsible for filing documents, collecting a list of all assets, and executing a series of steps that we will go through in more detail soon.

Who should be the personal representative?   Typically it is a family member or close friend.   This individual is often named in the will.  A court can also appoint someone, but in both cases, the position is voluntary.

If you are the will’s designated personal representative, the court will first validate the authenticity of the will, and will then officially appoint you as the personal representative of the estate — assuming you wish to accept the role.

Your role along with your lawyer and the court is to:

  • Identify all of the estate’s debts and assets
  • Inform necessary parties of probate proceedings
  • Pay debts
  • Distribute remaining assets

Can you get paid?  Absolutely.  In return for your services to usher your loved one’s estate through the process of probate you can be compensated either by an hourly rate or by a percent of the assets.

The probate process generally costs between 2 and 5 percent of estate assets, though probates settling high-value estates may cost 1 percent or less. The cost covers legal fees, court fees and compensation for the personal representative.

If we jump to the end of the process, what does everything look like after probate is complete?  Most courts will distribute assets as stipulated in the will.  If there is no will assets are typically distributed to family members in the below order:

  • Surviving spouses
  • Children
  • Parents
  • Sibling
  • Remote family members

Fantastic!  You’re doing great.  We now have a basic overview of probate and your role as the potential personal representative of the estate.  Let’s get into some of the details on what is required for probate and what is not.

 

Do All Estates Need Probate?

Generally speaking, yes, most estates need to go through the probate process. Depending on the state in which you’re filing, an estate below a certain value (usually $25,000 to $50,000) may be eligible for simplified probate. In Illinois, for example, estates below a certain value can be settled using a small estate affidavit; otherwise, you’ll be required to go through the full probate process.

However, only certain pieces of the estate must pass through the probate process.

Required For Probate:

  • Assets: Individually-owned homes, personal property (jewelry, cars, etc.), investments (stocks and bonds, etc.), financial accounts without a designated beneficiary, etc.
  • Debts: Mortgages, credit card debt, business loans, etc.

Not required to go through probate:

  • Generally, items with a named beneficiary
  • Property with joint ownership
  • Retirement accounts, bank accounts and insurance policies that are jointly held or that name a beneficiary
  • Property left in certain kinds of trusts and assets, such as homes and bank accounts held in joint ownership with right of survivorship.

Don’t worry, we’ll go through the exact steps of how to file the above items later.  I’ll give you the best tools and templates.  I’ll be with you each step of the way.

 

 How Long Does Probate Take?

Clock

 potzuyoko

The only reason for time is so that everything doesn’t happen at once.

– Albert Einstein

What surprises many people is how long probate takes.  Assuming you have an overall pleasant process without much infighting between beneficiaries, probate usually lasts from 9 to 12 months (the average time in California is 7 to 9 months).  It varies, but that’s a good rule of thumb.

Just having lost someone you loved this can feel like a long time.  It can feel like an extension of process of loss that you simply want to forget.

I promise that you won’t be dealing with this every minute for the next 7 to 9 months.  For large sections of time during that window lawyers will need to file documents and the courts will review your submissions.  You will have sufficient time for yourself to relax and mourn.  We’ll walk through each step so you’ll know what to expect.

Here’s a breakdown of how much time the different steps may take:

  • 1 month – To find a lawyer, set up documents and file with the court
  • 6 months – Minimum amount of time most probate courts require estates to be open (some allow 3 months) so creditors have time to make claims for debts owed
  • 2 months – To distribute assets to beneficiaries
  • 1 month – To close the estate and file for taxes

Now that you know the length of probate take the time to reach out to family members.  Let them know too.  Explain the major steps.  Speak candidly and let them know the process may take a year or more.  This is particularly important for family members who may be beneficiaries of the estate.

Probate doesn’t always work according to plan. Julie Garber, an experienced estate planning attorney, provides a good overview of what issues can extend probate. Many of the circumstances below can add months—or even years—to the process:

  1. Where does the personal representative live? Despite the advantage of modern technology, Garber thinks physical proximity actually does matter. Many probate documents require an original signature, so they have to be mailed back and forth if the personal representative lives far away.
  1. How many beneficiaries are there, and where do they live? Probate is a document-heavy process. The more people that are involved, and the farther they live from the primary probate lawyer, the longer it will take to complete the documents.
  1. How much will the beneficiaries disagree? That depends, of course, but sometimes it can be quite a lot. “Some beneficiaries may even hire their own attorneys to monitor the probate process, and these types of attorneys tend to nitpick at every single thing that the personal representative does.” (Garber)
  1. Will anyone contest the will? A will can be contested for one of four reasons: if it wasn’t signed under legal formalities, if it was produced by fraud, if it was procured under duress, or if the will creator lacked mental capacity at the time it was created.
  1. Is the estate taxable? Taxable estates can’t be closed until a closing letter is received from state and federal tax agencies. “And these days, I’ve waited anywhere from 6 to 8 months after filing an estate tax return with the IRS before receiving any type of response.” (Garber)
  1. How complicated are the assets of the estate? For example, if an estate has a legal involvement (e.g., owns a percentage of) a family business, it can take longer.

It’s normal for some issues to come up.  When they do take a deep breath and know that you will make it to the other side.  This too shall pass.

Great job!  Take the time now to write three things that you learned about the probate process.  You’re now empowered with a clear overview of probate.  In my next piece I will go through each step of the process as a personal representative of the probate process.  I’ll review the best secrets, templates and tools to help you get the job done!

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