Information about: Probate
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“To hell with circumstances; I create opportunities.”
– Bruce Lee
I remember when I got an interview to work with an Investment Bank in their “equities” group. I had no idea what “equities” meant.
I walked into my friend’s Brian’s room at college and said “Hey man, I have an interview next week with an equity trading group. What is equities?”
He stared at me.
“You’re definitely not getting the job if you don’t know that”, he said.
But he was wrong. I researched, I spoke with more people for background, I interviewed experts in the field. I was ready. And you know what? I did get the job and it rocketed me into a ten year highly successful career in finance.
Sometimes we all need to step into a role we don’t know anything about.
Take fifteen seconds now and write down two jobs you have taken that you knew nothing about at the outset. I bet with focus, help, a little bit of time and research you got better.
That’s what we’re going to do with Probate. You’ll be ready.
The Power Of Probate
As part of the journey of completing the affairs of someone who has passed, many families participate in a process called probate. This process is primarily a legal one and focuses on distributing assets and closing out final debts of the deceased.
In a previous post I spoke about the basic elements and timing of probate. I also reviewed the role of a “personal representative”, usually a family member, who is charged with ushering the loved one’s estate through the different stages of probate.
Now I want to come to the direct aid of that “personal representative”. I want to give her the exact tools she needs.
If you are new to probate or don’t feel you have the skills to understand the legal jargon or work with a lawyer this is the post for you.
We’ll strip away all the legal terms and confusing language. We will tear down the process to core elements and review the principles and practices that will elevate you to an expert.
By the end you will know what’s coming and how to prepare for it. No one will surprise you with a step you haven’t heard of or don’t know how to address.
Let’s begin the master class in probate.
Top 3 Probate Myths
- Probate Is For Lawyers Only – Probate is a word most people either don’t know what it means or think it’s just for lawyers. It’s not. A family member or friend plays a critical role. They are responsible for working with a lawyer and the court to count up and distribute the possessions (physical and financial) of the deceased. If someone dies, the law requires that someone steps into this role. Check out my last article on probate for background.
- There’s No Way I Can Help – Like math when people hear about the law their eyes glaze over and they search for a corner to hide in. However probate can get you and your family thousands of dollars. Does that sound like something you would work a bit towards? Probate can take some time but it’s not overly complex. It can 100% be learned within a few hours. It could be some of the most profitable hours of your life.
- Probate Will Take Up Too Much Of My Time – Think of probate like a series of sprints and not a marathon. They will be high points of activities but no, the process is not a second job. You have partners in this process. A lawyer will guide you. The courts will tell you the next step at each major stoppage point. We’ll talk about how to budget your time effectively and where to focus your attention.
How To Make Thousands During The Probate Process
Probate can feel like a drawn out process but it can also have huge benefits for you and your loved ones. Maybe your mother left a home or some retirement assets. Or your father had a vacation property that the will divided among three children.
There are tricks that you can use to decrease the costs of the probate process and increase the final distribution of cash and assets.
Rule #1 – Collect Your Loved One’s Major Documents Before Seeing A Lawyer – Lawyers cost an enormous amount of money. Any lawyer worth your time will cost $150 / hr +. When you go to your lawyer this is the very first thing he will ask you to do.
You will save 10 – 20 hours of billed time to your lawyer by doing this yourself. This one step will save you $1,500 – $3,000.
Here’s exactly what you need to gather:
|Health Care||Certificate of death signed by a doctorBirth certificate||Organ donor cardMedicare / other insurance card|
|General Information||Full namePlace of birthLast address||OccupationWhether the deceased was receiving state or federal benefits|
|Will||Sealed copies of the will and grant of representation|
|Savings/Investments||Bank statements (e.g., checking & savings)Investment statements (e.g., retirement accounts)||Pension/Social Security Info|
|Insurance||Life insurance documentsGeneral insurance documents (e.g., home, car)|
|Debts owed||Mortgage statementsCredit card statementsUtility statementsRental agreementsOther outstanding bills||Lease agreements (e.g., car, furniture)Education loan statementsAny other statements|
|Property||Property Keys||Property deeds or leases|
|Other possessions||Existing valuations of property such as jewelry, art work and similar items of worth||Any existing inventories of property/possessionsSafety box deposit information|
|Employment||Recent tax returnsLatest pay slip|
|Business||Company registration documents, accounts, tax returns if they had a business|
Rule #2 – Set Up An Arrangement To Pay Yourself – If you have been named the person in your family who will catalog assets and debts and represent your loved one through the probate process (often called the “personal representative”) you can ask the estate to pay you a fee for your work. The probate courts decide this and often the pay is between 1% – 3% of the total assets of the estate.
Too often caregivers and those who assist the family get financially forgotten. They work hard and put aside their own priorities to care for a loved one. When possible they should be compensated for this work.
This step can earn you and your family hundreds or thousands of dollars over the course of a year.
Rule #3 – Protect Yourself – Once you become a personal representative for the estate and the probate process you are not all of a sudden thrown into covering the deceased person’s debts. You are not personally liable.
However you are liable if you make major mistakes. If you forget to pay a debtor before giving cash to family members you can be personally liable in some states. Here are some quick tips that will save you from losing thousands of dollars.
- Buy homeowners insurance – if your Mom’s old house burns to the ground when it was under your care you will be liable.
- Estimate values of homes, cars, financial assets conservatively – This can help avoid challenging discussions with banks, probate court and irritate family members.
- You can walk away – Even if you sign up to run the probate process you can step away from it at any time at no cost. Sometimes this is an important option if the discussions with family members become too contentious.
Probate Case Studies
Below are some common probate scenarios and how the tools above can have a direct financial impact to you and your family.
Scenario 1: Home is the only major asset – $80,000 value
- Buy home owners insurance
- Collect home related documents before seeing your lawyer
- Pay outstanding medical bills and funeral costs
Value To You: Saves you time and money
Scenario 2: Retirement funds and savings are the only assets – $100,000 value
- Collect retirement fund documents and determine beneficiary
- Distribute (retirement assets are often not part of probate court)
- Document $25,000 – $50,000 other items (e.g., jewelry)
Value To You: Saves your time on probate process and increases distribution
Scenario 3: Large amounts of debt – $250,000 owed (e.g., credit cards)
- Collect all assets and distribute to cover debts
- Allow court to negotiate with creditors to cancel remaining debt
- Earn more money in your job
Value To You: Not responsible for other people’s debts
Let’s say your mother or father was wealthy and left significant assets. Maybe even a few million dollars is left. My strong advice to you is to get a lawyer. Look here.
When there is a lot of money at play two things become true. First, the legal and financial complexities increase exponentially. Second, the family dynamics become more intense.
Step aside and let the experts deal with it.
Take action now! Which of the above scenarios is most similar to what your family faces? Write down three ways that you can maximize your financial outcome and three ways you can take care of yourself during the process.
“A journey of a thousand miles begins with a single step”
Below are advanced steps to smooth out the probate process for you:
- Publish A Death Certificate In The Newspaper – This will initiate the probate process with creditors. You’re required to do this if you’re the “personal representative” of the probate process.
- Bring The Real Copy Of The Will To Probate Court – Don’t bring a photocopy. You can get this from your loved one’s lawyer. They want to see the real one.
- Take A Look At Legal Forms – This is the Colorado state “Descendants Estate Inventory” form. Review the categories. Your state may be slightly different. The categories will be the same however.
- Setup A Checking Account and Pay Bills – This is the order in which bills are paid for estates:
- Estate administration (for example, legal fees and personal representative fees)
- Family allowances (money to cover family members’ living expenses while the estate is in probate)
- Funeral expenses
- Taxes and debt
- Claims against the estate (payments to beneficiaries)
- Start In Under 9 Months – By Federal law estates must file takes within 9 month’s of the owner’s passing.
Congratulations! Great work. Now take the first action step and collect one document today. Don’t wait.
“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:
- What is probate?
- How long does probate take?
- What are the basic steps of probate?
- 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
- 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?
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:
- 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.
- 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.
- 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)
- 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.
- 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)
- 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!