Probate is often a long and difficult process individuals have to undertake in a particularly emotional part of life, after the death of a close family member or friend. Located in Columbia, Missouri, Nathan Jones Law specializes in estate, probate, and business law and handles many probate cases. Nathan Jones, an attorney and founder of Nathan Jones Law, shared his expertise on some of the most frequently asked questions regarding the probate process.
The Personal Cost of Probate
Following the death of a loved one, probate can immediately take effect as the personal estate of the deceased begins to get distributed to heirs or beneficiaries. Probate ensures that this process is conducted fairly and is especially important if the individual failed to secure an official will before dying. For more information on the probate process, please feel free to read our additional coverage in Making Sense of the Probate Process and The Probate Process: A Guide to Probate Bonds.
How much does probate cost?
The average probate process usually costs in the range of $10,000 to $15,000 in total, which includes court costs, appraisers fees, and other expenses. The exact cost of probate can vary from state to state and even county to county, so Jones says it is always best to become familiar with regulations in the region probate is being conducted.
How long does the probate process take from start to finish?
Jones says the typical probate case lasts around a year. However, the length of time that probate proceedings last is often dependent on a case’s complexity, such as how contentious it is between individuals standing to inherit the estate, how much personal property needs to be distributed, and whether or not the individual had debt being collected by creditors.
Do I need an attorney for the probate process?
Due to the frequent complications associated with probate, many states require an attorney to go through the probate process to ensure a professional is overseeing the process. For instance, in Missouri, you must have an attorney unless the total assets going through probate are valued at less than $40,000.
“Even if the total assets going through probate are valued at less than $40,000, many people hire an attorney to assist because the process can be very confusing,” says Jones. Hiring an attorney for the process is often a good idea because it affords clients the opportunity to have an individual who can answer any questions or can be of assistance in case heirs or beneficiaries are fighting over the deceased’s personal property.
What if my family member passed away without a will?
If a family member passed away without a will specifying exactly what personal property should be appointed to who, the situation is coined “intestate.” Dying in intestate means the deceased’s personal estate will automatically enter into probate.
“When there is no will, there are laws in place that dictate how the estate will be distributed and set out the priority for who will be in charge of the estate,” says Jones.
These laws are sometimes in line with what the deceased would have wanted, but sometimes conflict with what is the designated process set by the state. If the deceased has specific wishes with how his or her personal estate should be distributed, the individual should do everything in his or her power to have a will drawn up while he or she is still alive.
Can I have the court-appointed executor removed?
An executor, often called a personal representative, can be removed if there has been a breach of conduct. This would mean the executor has done something that would be deemed dishonest or incompetent. An executor can also be removed for committing a felony, failing to carry out the deceased’s wishes, or grossly mismanaging the property.
“In my experience, it is easier to prevent someone from being appointed as executor, especially if there is no will, than it is to remove him or her after they’ve already been appointed,” says Jones.
If at all possible, it is always best to determine who will become the executor of your estate in an established will to prevent the court from having to appoint an executor. This is the easiest way to ensure your wishes will be respected in regards to your personal estate.
How do I keep my heirs from having to go through probate?
You can keep heirs from having to go through probate by completing a thorough estate plan, which includes explicitly planning out what will happen to your assets after death.
“A good estate plan will be set up to avoid the probate process, if at all possible. Trusts and beneficiary designations on assets (such as Payable on Death accounts and Transfer on Death accounts) are common ways to avoid probate,” says Jones.
A Payable on Death account and Transfer on Death accounts will allow you to designate assets to beneficiaries that can be set up with a bank or credit union. The POD or TOD account will trigger instantly upon the individual’s death and assets will be distributed. The account holder will need to let the bank or credit union know who is the designated beneficiary and fill out paperwork officially signing over the account upon the individual’s death. POD accounts could include checking and savings accounts, security deposits, savings bonds, and other deposit certificates, while TOD accounts refer to individual retirement accounts, 401(k)s and other retirement accounts.
When is a surety bond required for probate?
Surety bonds help protect the estate and beneficiaries from fraud, embezzlement, or other illicit acts. With a surety bond in place, family members have an option to seek legal action if the personal representative chooses to take advantage of the deceased’s assets or estate. A surety bond may also be imposed on a personal representative, or executor of the personal estate, when the deceased had no will place.
“A surety bond may be a court requirement when the probate court determines that a surety bond is appropriate for the protection of heirs and creditors. Most wills waive the requirement of a surety bond, but not always,” says Jones.
If you’re in the market for a probate bond or have additional questions about probate bonding requirements in your state, please visit SuretyBonds.com.