What is Probate?

If an asset is titled in the decedent's name at death, generally nobody else will be able to manage it.  For example, if a loved one owns a checking account and then passes away, the bank will not take direction from anyone in terms of what to do with that account.  Instead, the account will be frozen until someone is able to provide the bank with proof that he or she has the authority to deal with the asset.  The same is true with all kinds of assets including savings accounts, investment accounts, stocks, bonds, and real property.

By submitting the decedent's estate to probate, you are requesting that the Court appoint someone as Executor and issuing "Letters of Administration," legal authority that allows the third party to manage all assets that are titled in the decedent's name.  By showing the "Letters of Administration" to the financial institutions, the Executor will be able to take control of the decedent's assets.  With this authority comes responsibility.

The Executor has the legal duty to take inventory and appraise all assets in the estate, protect the assets of the estate, notify known creditors of the decedent's death, publish notice in a newspaper of the decedent's death to give unknown creditors the opportunity to step forward, address creditor claims, pay taxes, and keep the beneficiaries informed. 

After all of the above tasks are completed, the Executor is ready to request the Court's permission to distribute the assets to the beneficiaries of the estate.  The Executor must file a "Petition for Final Distribution" which reports on all of the Executor's activities and proposes how the estate should be distributed.  Once the Court approves of the proposed final distribution, the Executor is able to transfer the assets to the beneficiaries.

Most of the time, the Executor is not able to accomplish all of these tasks without legal counsel.  Attorney fees for probate are set by statute and are based upon the gross value of the estate.  Such fees are usually much higher than if the Executor were able to pay the attorney an hourly rate. 

Most clients who are familiar with the probate process choose to base their estate plans around a Revocable Living Trust which allows loved ones to avoid the probate process all together.  All of the above tasks will still need to be performed, but with a properly drafted Revocable Living Trust, the courts most often can be avoided entirely and there are no set statutory attorney fees: the trustee and attorney can agree on whatever fee structure is most appropriate for the specific situation.