WHEN IS THE PROBATE COURT INVOLVED IN OUR AFFAIRS?
The probate court has a responsibility to manage our affairs when we can’t.
This can happen in three different situations:
You die and own assets titled in your own name, or the estate is the beneficiary. Since you can no longer manages these assets, someone must be given the legal authority to manage these assets on your behalf. The probate court has the responsibility to appoint an estate representative and monitor the activities of the estate representative.
You become incapacitated. The law will consider you unable to manage your financial affairs or make your own health care choices. Someone must be given the legal authority to make choices for you. The probate court is obligated to appoint a conservator to manage your affairs, and then supervises the activities of the conservator.
A minor child is named as a beneficiary. Since minor children cannot legally “own” property, a guardian must be appointed to manage their affairs until the minor child is considered an adult. The probate court has the responsibility to appoint a guardian and to monitor the actions taken by the guardian.
"Working through a probate court without a plan was a nightmare."
When the probate court is involved, several things happen:
All of the information regarding you and your financial or health affairs are public records. In many courts, these records can be accessed online by anyone.
The cost of probate comes from your net worth. These costs can include court filing costs, legal fees, surety bond, and reporting fees.
The person appointed to be in charge of making choices for you or your minor children must follow choices set by state statutes, which may not be your choices.
The courts will appoint someone to act on your behalf, or on behalf of your minor children. This person may not be someone you would want making choices for you and your minor children.
You can find out more about the probate process and avoiding probate on these pages:
Billions of dollars are spent each year for probate. Probate fees include court costs, personal representative costs, executor fees, attorney fees, bond fees and appraisal fees.
There is a wide variance in what it costs to open and file a probate case. Examples of such fees and costs include the following:
The fees your attorney and estate representative charge. Some states set “reasonable fees” as the statutory attorney fee and the executor fee, usually based on a percentage of the gross value of the estate. You can find out the statutory fees allowed for attorneys and executors in the probate reference tables.
The types of services the attorney performs. Besides statutory fees allowed for completing and filing probate forms with the courts, attorneys have the right to seek payment for “extraordinary services performed” whereby they deliver value to the estate due to unusually difficult or complicated circumstances posed by the probate. For instance, attorneys can charge an extraordinary fee if they are asked to review real estate sales documents. This task is not part of the normal statutory fee.
The type of real estate the deceased owns. If the deceased owns real estate in another state or another county, it may be necessary to open a second probate case in that state and county and pay additional attorney fees and probate filing fees.
The cost of a professional testamentary trustee (a trustee of a trust created by a will). If through your will you create a Testamentary Trust, the trustee also has the right to charge the statutory or reasonable fees allowed by the state and/or contemplated by the testamentary trust provisions.
The fees the courts charge to open a probate case. Some states base court fees on a percentage of the gross value of your probate assets.
The cost of buying a Surety Bond for your executor, guardian or conservator, which is paid from your probate assets.
The type of probate process required. A simple probate case will cost less time and money than a normal probate filing. The forms and procedures available to a surviving spouse can cost less time and money than a normal probate process.
FACT: Estimated Probate Costs
Available research shows probate costs can consume between one to eight percent of the value of your probate estate when you die.