Mark R. Osherow, P.A.

P R A C T I C E A R E A S - P r o b a t e & A d m i n i s t r a t i o n

What is Probate?
Probate is the legal process used by a state:

to determine the validity of a will
to supervise the administration of estates

This process is overseen by a particular court in the state where the deceased lived, usually called the probate court or surrogate?s court. If you own real estate in another state, you will probably need to probate the will in that state as well. This process is called ancillary administration of an estate.

The probate process provides supervision of the management and settlement of estates. This process entails:

the collection of assets
the allowance of claims
the distribution of the assets to beneficiaries

The probate courts also handle:

the administration of intestate estates
in some states, the appointment of guardians for minors and incompetent adults

Is Probate Expensive?
Probate costs vary widely by state and depend upon the size and complexity of the assets in the estate.

Probate costs include:

state-imposed fees paid to the court
fees paid to professionals for services rendered to the estate such as legal and accounting fees, executors? commissions and appraisal fees

Certain fees are based upon the size of the estate and, accordingly, can be reduced by lessening the size of the probate estate. Other fees are based upon the services that are needed and may not be significantly altered by reducing the size of the probate estate. For example, lifetime transfers to revocable trusts might not reduce the legal or accounting fees for the preparation of estate tax returns.

How Long Does It Take to Probate an Estate?
In many states, a will can be admitted to probate 10 days after death. It is hard to generalize the time necessary to complete the entire probate process since it depends upon:

the size and complexity of the estate
the identity of the state where the will is probated

Will contests or litigation over debts against the estate serve to delay the probate process. However, it has been estimated that the probate process is completed for the average-sized estate within nine months after death (which is the time when most estate tax returns are due).

Should You Try to Avoid Probate?
Avoiding probate in smaller estates may not be worth the effort. However, practitioners in many states espouse living trusts and other ways of avoiding probate for larger estates in order to save time and money and avoid public scrutiny. You should be wary of claims that avoiding probate reduces estate taxes since it virtually never has any effect on these taxes.