What is a probate?
In order to be effective, a Will must be admitted to probate after the maker of the Will dies. That is, the Will must be filed with an application with the appropriate court. The court then finds that the Will was made by the decedent in the proper formalities; and has not been revoked. Sometimes, there is a need for administration.
Administration is where the judge appoints an executor (administrator, if there is no Will) who then winds up the affairs of the decedent. That is, the executor gathers the property, sells property as needed, pays debts, and distributes to the beneficiaries under the Will (or heirs if there is no Will). Although the Will states who the executor is, they are only nominated by the Will. The judge must find that they are qualified to be executor (no felony convictions or is otherwise not fit). Sometimes there is no need for administration, and the probate is called a muniment of title.
The biggest expenses of probate
There are three main expenses you can have in a probate.
- No planning
- Poor planning
If there was no planning, dependent administration may be needed. This becomes even more complicated if the heirs are minors, as guardianships may be necessary for each minor. It is important to note heirs may include children adopted out when the decedent was young. All can be resolved for a price, but the costs fall disproportionately on a small estate.
Poor planning can cause a variety of problems. For instance, having the assets go to the "wrong beneficiaries". I put wrong beneficiaries in quotes, because it is a presumption on my part. For example, if you put your neighbor on your bank account to write checks for you to pay for groceries, etc. If they are listed as a co-owner with right of survivorship, the neighbor gets the bank balance when you die, regardless of what your Will says. If your house was sold and the proceeds deposited to the account, your neighbor could become the primary beneficiary of your estate. If your Will says "all to my children", your neighbor appears to be the "wrong beneficiary.
If a house in an estate is not going to a beneficiary under the Will, the house must be sold in order to settle the estate. Ideally, the executor should list the house with a qualified real estate agent immediately. Oftentimes, however, an executor may delay because the house needs to be cleaned out. Unfortunately, the delay costs the estate in the long run.
Dealing with the loss of a loved one is difficult, but waiting can cost time and money. Call today.
Robert V. Hands Esq.