What is Probate?

By Executor’s Resource, Inc.

For some reason, the word “probate,” usually used with the term “court,” strikes fear and loathing in the hearts of most of us who are over 40 years of age.

By this age, we’ve lost a loved one, a parent, perhaps. Maybe we’re realizing we better take the time to arrange our affairs just in case. And while we’re not entirely sure what the whole inheritance and estate-settling process is about – hey, they never taught it in school – the one thing we are darn sure of is that we should avoid probate court.

Legend has probate court fraught with expensive costs, impassive judges, quarreling relatives and greedy lawyers. Like the fabled Hotel California song by the Eagles, you can check out any time you like, but you can never leave. By the time the estate is dragged through probate court, our fears tell us, we’re not sure the family will ever see a dime.

In reality, probate is not the well of horrors that it’s cracked up to be. It’s largely a long list of clerical procedures that attorneys file with the court to make sure the estate is settled (debts, claims and taxes) and assets go to the ones they are supposed to. There’s usually not a lot of fighting or even much drama in probate.

There are ways to avoid it and some of the expense – to do so, you first must understand that there is a difference between estate administration and distribution and the probate process. Every estate needs to be administered and distributed - probate is simply the involvement of a court in that process. Generally, whether probate makes the process more complicated and/or expensive depends on what state’s laws are applicable. But the tasks required to administer and distribute an estate are very similar regardless of whether the estate is being administered and distributed outside probate, through probate, or more typically, through some combination of the two.

Much of the expense incurred with probate attorneys is related to the administration of the estate – simply getting things in order and processing them, rather than the actual court costs. For instance, probate attorney fees can be 1 to 2 percent on a $400,000 estate. Court costs and related fees would be in addition to that. They tend to vary by state and by county, and can be as little as a few hundred dollars.

While it is a process that is supervised by the courts, probate, in itself, is neither bad nor good. Rather, it is how you choose to prepare, or not prepare prior to your passing, that will make probate court and the estate administration process good or bad for your executor and loved ones. Probate can take anywhere from one year to many to accomplish and if you don’t organize things now, it can drag on for much longer.

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