“Do I have an estate?” and other questions to ask an estate planning attorney – Part 2

By Kendra Hampton

This is part two of an article containing important questions to ask an estate planning attorney.

Kendra Hampton, Lecturer in Law

What is probate?

Probate is the court-supervised process of authenticating a decedent’s will if there is one, collecting the decedent’s assets, notifying interested parties, paying the decedent’s bills, taxes and any creditors, and then distributing what is left to the decedent’s heirs or beneficiaries.

A person, usually a family member of the decedent, files a petition with the probate court to be granted the legal authority to manage the administration of the decedent’s estate. Assuming they qualify that there is no contest, that person is appointed either as an executor or personal representative, depending on whether the decedent left a will.

How long does probate take and how much does it cost?

Each state in the United States has slightly different probate rules and procedures, and the probate process in every state is time consuming and costly.

Probate can take anywhere from six months to several years depending on the circumstances. Some factors that affect timing are whether family members agree, how many assets the decedent left, whether the will is contested, whether there are creditors, how difficult it is to find beneficiaries or heirs, and whether the executor or personal representative is attentive to his or her responsibilities.

In addition to court filing fees, the executor or personal representative typically hires a probate attorney to advise them throughout the process. In California and a few other states, probate attorneys charge a fee that is a percentage of the value of the decedent’s assets that go through probate. Those percentages are set by state law. In California, those percentages currently are: 4 percent of the first $100,000 of the gross value of the probate estate, 3 percent of the next $100,000, 2 percent of the next $800,000, 1 percent of the next $9 million, and so on. In other states, probate attorney fees are not governed by state law so it is up to the client and attorney to agree on a fee.

Does every estate go through probate?

No, not every estate goes through probate. Probate may not be necessary if a decedent left a small estate. For example, in California, if a decedent’s estate is worth $150,000 or less, and you have the legal right to inherit the property, you may not have to go to court. In New York, a will only needs to be probated if the decedent died with assets valued $30,000 or more. Of course, requirements differ by state. For example, each state has a different definition of what is considered a “small” estate.

Who should I name as my Executor or Trustee?

People typically name a close family member or friend to serve as executor or trustee. You should choose a person you feel comfortable will respect your wishes and carefully manage your estate. If possible, you should also pick a person who lives close to you. It is more difficult to serve as executor or trustee if you have to travel to fulfill your responsibilities.

If you do not have someone in your life whom you trust to serve in this important role, you should consider naming a professional fiduciary. Professional fiduciaries offer estate management services among other services. Many states require that professional fiduciaries are licensed and complete ongoing education requirements.

About the Author:
Kendra Hampton, who has her own law practice focused on estate planning and probate, teaches online Contract Drafting & Strategy for USC Gould School of Law’s LLM and MSL programs.