Many people have the preconceived notion that probate is a frustrating process that can turn into an unmitigated disaster. That need not happen.
Understanding what occurs when a will goes into probate should give you a more positive view of the procedure.
A legal process
In the first place, probate is simply a legal process for winding up the estate of the decedent. There are three basic phases: the naming of an executor, the organizing of assets and debts, and the final accounting. Some assets, such as retirement accounts or insurance policies that have named beneficiaries, will not have to go through probate; the proceeds can go to the beneficiaries directly. However, personal property, real estate, cash and cash accounts that do not have transfer on death or TOD designations will be subject to probate.
Expenses related to probate will vary depending on the size and complexity of the estate. However, costs might include:
- Court fees
- Account fees
- Fees the executor pays
- Valuation and appraisal fees
- Attorney fees
In general, the costs usually amount to between two and five percent of the total value of assets that are subject to probate.
Most beneficiaries want to know how long probate will take, but again, that will depend on many things including the size and complexity of the estate. First, the executor may have to locate assets and speak with family members, accountants and others to find everything. Delays could occur if there is real estate to sell, for example, or if a dispute arises among beneficiaries. In the state of New York, probate could take anywhere from several months to two years or more.
Some people are intestate when they pass away, a legal term that means to die without having made a will. In this case, the court will step in and distribute the property of the decedent according to the law of intestacy. Otherwise, the legal process known as probate will go forward, and the beneficiaries can expect asset distribution to commence in due course.