Law News and Tips

THE TERROR OF PROBATE

Fred Vilbig - Friday, October 31, 2014

Probate is one of those unknown things that scare people. They feel that probate is the monster that eats your assets when you die. They have either heard horror stories or been through a bad probate experience that they never want to do again. When you clear away all of the smoke and dust and debris, probate really isn’t as bad as what people say it is, but it is something to be avoided.

Historically probate developed in Merry Olde England as a way to make sure that your bills got paid. (It’s not about protecting the widows and orphans like I used to think.) When a person dies, any individually owned (not jointly owned) property is frozen. If there is a will, it must be filed with the Probate Court within a year of the person’s death or it is invalid. Someone is appointed as personal representative. A notice is published telling people to file a claim if the decedent owed them any money. Within 30 days of their appointment, the personal representative has to file an inventory listing what the decedent owned.

Once the inventory is filed, then it is a waiting game basically. People file claims. The personal representative may or may not pay them. The personal representative collects the assets and sells what needs to be sold. Bills are paid. But mainly you wait.

If a person has a claim against an estate, they have to file the claim within six months of the opening of probate, or they are barred from collecting whatever is due. Once the six months is over, the personal representative prepares an accounting saying what they started with, what they earned, what they paid, and what’s left. Then they file a proposed schedule of distribution, and if it’s approved, they distribute the assets and they’re done.

Probate isn’t the end of the world, but it’s annoying. Everything is a public record; there are time delays; and there are fees that run between 1 ½ and 2 ¾%, depending upon the size of the estate.

It isn’t the monster some people think it is, but I usually try to avoid it with clients. There are ways to do that, but that’s another article.
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