What is Probate?
Probate is a court process to transfer individually owned assets at death. All states have factors that require court probate, which are typically individual ownership of:
- Any amount of real estate, even if low value; or
- All other assets totaling $75,000 in Minnesota or $50,000 in Iowa.
Court probate is usually confusing to those untrained in the process. State statute requires the process to last many months with multiple court hearings scheduled.
Conservative legal fees and expenses for this process are typically in the $5,000 to $10,000 range. Any complexity or disagreement will greatly increase time and costs.
Common Misconceptions
Do not believe advice that your probate will be informal and cheap. Whether a court probate is formal or informal is at the total discretion of the probate registrar, a court staff member who is not a judge. What may have been an informal probate years ago when drafting an estate plan may not be an informal court probate years later at death. Additionally, informal probate is not always that much cheaper, and sometimes is not a huge time saver either.
If you die without a Will, the state has written a Will for you in the intestacy statute. During intestacy court proceedings, assets are managed and distributed according to state statute. Heirs must be located and court approved.
A huge misconception is that having a Will avoids probate. If you die with a Will, individually owned assets still go through court probate. The Will is simply a request to the court on how to manage and distribute your assets, which will be approved or set aside by a judge.
WHY AVOID PROBATE
Transferring property to loved ones should be simple, prompt, and inexpensive. If assets avoid court probate they can typically be transferred immediately, or within weeks of death at little to no expense.
If assets are governed by court probate, state statute will require multiple public court hearings with no privacy, multiple notices mailed and published in the newspaper, and many months to allow other parties, such as creditors or upset individuals, a chance to have their say in the process.
Ethical and competent legal fees for court probate are still many thousand dollars, typically in the $5,000 to $10,000 range. Management and distribution of assets may be governed by a Will, but even that can be challenged and set aside in favor of state statute.
Proper estate planning can avoid all court probate. It is estimated based on our years of experience that proper estate planning costs one-half (1/2) to one-third (1/3) of what court probate costs.
Probate and Estates
How we handle Probate and Estate Administration
Court probate we handle is rarely, and almost never, from estate plans we draft. We do handle court probate for those who had no estate plan, or have an estate plan drafted without proper care and analysis.
Much of our practice is digital, and most necessary data can be provided to us electronically. We do not have double entry of data from using certain state software programs. Our forms are handcrafted and connect to our own case tracking program.
Our fees are billed at one-tenth (0.10) hour increments. You are only charged when we are working, and never value billed with minimums set for certain documents or services. Invoices are approved by you prior to needing court approval.
If there is a challenge or question to a court probate, I am formerly board certified in a litigation discipline. I am still a licensed mediator and arbitrator, and trained in behavioral analysis interview and interrogation.
Typical Timeline
Typical Court Probate Timeline
1Initial meeting with the client administering the court probate within a week of first contact.
2 Multiple pleadings filed with the court within 1 or 2 weeks of meeting the client.
3 First hearing in 5 to 8 weeks after first filing to allow for newspaper publication.
4Creditors have 4 months after the first newspaper publication to file a demand for notice.
5 2 months after the creditor deadline, the personal representative can file to challenge creditors.
62 months after being challenged, the creditors can demand a hearing.
7 Medical Assistance authorities must be notified, and any claims agreed upon and paid.
8 Any challenges will add many months to schedule hearing dates, mediation dates, and potential trial dates with multiple parties and professionals.
