Clients Bill of Rights>

 PROBATE: The word “Probate" usually brings to mind the family gathered around the lawyer's desk to read the Will, sterile courtrooms, all the while greedy attorneys and others draining every dime they can from the estate of the deceased, leaving the family with little or nothing. These perceptions come from Hollywood and anecdotes passed down from one generation to the next. Many of the stories are not true or are based upon misunderstandings of what actually happens. Many of the stories are all too true. Briefly, here is what probate really is:

 WHAT IS IT?  Probate is simply the orderly administration of your estate with a Court (i.e., a Judge) supervising the management of the estate either according to the terms of your will (if you have one) or by “intestate succession” (if you do not have a will). To overly simplify the process, you may think of it this way: First, if the deceased is you, all of your assets are assembled. Then, all of your debts are assembled. The costs of administration (the costs of the attorney and executor to name two) are paid. If there is not enough cash to pay the costs of administration, some of the assets of the estate will be sold to pay them. Then, taxes are paid. Finally, whatever is left is delivered to the beneficiaries in the will or to your heirs according to the laws of intestate succession.

Many people believe that if they have a will there is no probate. Nothing could be further from the truth. Whether you have a will or not, your estate must go through a probate proceeding, unless it falls within some exceptions. The exceptions are addressed below.

The only difference between dying with a will and dying without a will is that, if you die with a will, you tell the judge how you would like to have your property distributed after your death. If you die without a will, the state legislature tells the probate court how to distribute your estate. In either case, a formal probate will take place.

In a probate, the person who is authorized by the probate court to administer the estate of a deceased person is called a personal representative, whether appointed by the will or by the court. If the personal representative is appointed by the decedent's will the person is called an “executor”; if appointed by the court when the decedent died intestate, the person is called an "administrator.”

It is the court-ordered duty of the personal representative to
1) gather and take possession of the assets of the decedent,
2) pay the decedent's debts,
3) distribute the balance of the decedent's property to the persons entitled to it.
What is often needed is some way to "sign" the decedent's name after death. During life, a person signs a deed or bill of sale to transfer property. When a person dies, it is still necessary to have some document to show a transfer of title, in other words, to obtain the “signature” of the decedent. The probate process provides one method of doing this.
(The Revocable Living Trust is another method. The Revocable Living Trust is discussed below.)

 WHAT DOES IT COST?  The cost of probate is just the first of several disadvantages this method of handling an estate entails. The executor and the lawyer are each entitled to the same fee. This is for "ordinary" services. If any "extraordinary” services are done, the court will allow an additional fee for those additional services. The chart below shows what each is entitled to receive for “ordinary” services. You should also know that, for the purpose of computing the fees, the gross estate value is used. This is the actual market value of everything subject to probate court control which the decedent owned at the time of death without deducting mortgages, liens or other debts. These fees are the new fees effective 1/1/02.

(When the estate's value is more than $1,000,000, the amount in excess of $1,000,000 is subject to a rate of 1%, which is then added to $23,000 to determine the full fee due the attorney.  (Fees for estates over $9,000,000 are further reduced in percentage.) NOTE: Additional fees also may be requested to be paid for "extraordinary" legal services, such as assistance with the sale of real property or in the event of litigation.