Why Do I Hear Bad Things About Probate?

Last Will
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Probate is much maligned. To hear some folks talk, having your estate subject to probate is worse than dying. What's all the fuss about?

Understanding Probate

Probate is a title proceeding. If a person dies owning property, the question arises: Who is the next rightful owner? Probate is the procedure by which the next ownership is determined.

Is There a Will?

If the decedent left a will, it is filed with the appropriate office, the executor (the person in charge of the estate) is sworn in, and notice is given to all persons who have an interest in the estate, including creditors. Anyone who wishes to contest the will, which means to object to it, may do so within a prescribed time period. Grounds for contesting a will might be that: 

  • The decedent did not know what they were doing when they signed the will. The law calls this "lack of testamentary capacity."
  • The decedent was under "undue influence" at the time they signed the will. For example, someone was pressuring and pushing them into a decision, and the decedent was susceptible to the influence.
  • The will was improperly executed. For example, a will may not have enough witnesses, or the witnesses may be disqualified persons.

If the decedent did not leave a will, or if the decedent’s will is found to be invalid, then the next rightful owner(s) of the decedent’s property are determined by state statute. A decedent who dies without a will dies "intestate." The state’s intestacy statute determines the decedent’s heirs. In general, the heirs of a decedent are, first, children or more remote issue, then parents, and then siblings and their issue. A surviving spouse is entitled to a share, usually about one-third of the estate, depending on which state was the decedent’s domicile.

There is a common misconception that a surviving spouse inherits the entire deceased spouse’s property. That is often not the case where there are children. A will or the intestacy statute only operates on property that was solely owned by the decedent. If property was held jointly with the surviving spouse, it passes immediately on death to the surviving joint owner.

Contrary to popular belief, if you die without a will, your property does not necessarily go to the state. The probate proceeding is still necessary to determine who are the heirs, and in what proportion they will take the decedent’s property. Creditors are also given the opportunity to come forward with their claims.

So, What’s So Terrible About Probate?

Nothing. It is a fairly simple and logical process. Probate gets its bad reputation from the professional fees that are charged. The executor or administrator and any professionals, such as attorneys and accountants who are engaged to assist with the estate-settlement process, are to be compensated. The duties of the executor and advisors go far beyond the probate process, including the filing and payment of any federal estate taxes or any state estate and inheritance taxes. The executor or administrator and attorney are, of course, entitled to be compensated for their work on behalf of the estate. It's common in this area for executors, administrators and attorneys to compute their fee for services as a percentage of the assets included in the estate, maybe five percent, or perhaps less. The problem with this approach to fees is that it does not always bear a reasonable relationship to the work and responsibility involved.

High fees are the source of most of the horror stories one hears about probate. The procedure itself is not expensive; it is the professional fees charged that are sometimes excessive. The answer to this problem is to be informed. When planning your estate, and if you are the executor or administrator of an estate, you need to make sure that the compensation arrangements that you enter into with professionals are fair and reasonable. There is no question that the services are valuable and deserve to be compensated. The question is: How much?