The High Cost of Probate

February 23, 2019

Legal Matters

Presented by: Bradford & Holliman, Estate Planning, www.bradfordholliman.com

People that have a Will are able to name their personal representative (also called an “executor”). This is the person(s) that the probate court will generally give authority to handle the estate when the person dies.

A Will cannot be submitted to the probate court to open an estate until 5 days after the death of the person and should be accepted up to 5 years after the death of the person. Often, if the personal representative is a beneficiary of the Will, the personal representative will not charge a fee because inheritance is income tax free while a fee received for handling the estate is taxed. However, in cases where the personal representative is doing a lot of work and there are many beneficiaries, the fee may be charged. The law allows a fee up to 5% of the value of the estate. This fee does not include attorneys’ fees and court costs.

When a person does not have a Will, the law allows various people, both family and non-family members, the right to ask the probate court for permission to handle the estate. If there is no one otherwise qualified to serve as the personal representative, a county administrator may be appointed. These administrators can also charge 5 % of the value of the estate.

While the cost is likely shocking, the bigger shock may be that, in large counties (400,000 or more people), the family is precluded from serving in the role of administrator if they wait to open the estate until 40 days after the person’s death. In those cases, the county administrator is named as personal representative unless the county administrator decides to decline the role.

If you want to avoid the costs of probate, you may want to talk to an estate planning attorney about a revocable living trust; or, at the least, make sure you have a Will and that your family knows to probate your Will as soon as possible.