After the loss of a loved one, unless they took the time to plan in advance, you will likely have to go through a legal process called probate to administer his or her estate. It can be overwhelming and intimidating, as you may not initially know who to contact, what’s required of you, or how the process works in general.  There are also a lot of myths about probate that can complicate matters further. I’ve addressed some of the most common misconceptions I hear so that you can focus your time and energy on the probate tasks that really matter.

If There’s No Will, The State Will Seize the Assets

It’s an excellent idea for everyone to create a will before they die. However, the state can’t take everything a person owns without a will. Instead, intestate succession could apply depending on state laws.

Intestate succession typically involves passing down the deceased’s assets to the next of kin in order of succession, such as:

  • Spouse
  • Children
  • Grandchildren
  • Parents
  • Other dependents or relatives

The only time the state could end up with the deceased's assets is if they don’t have a will and zero next of kin.

Probate is Not Necessary if a Will Was Prepared

Probably the biggest misconception I see from the general public about estate planning is they assume that a Will avoids probate.  Nope! In fact, there is a saying, “where there is a Will, there is a probate”. If a Will was not prepared, the probate court will decide who the executor of the estate is, who inherits the assets, and how, based on state law.

A Will is a set of written instructions to the probate court on who you want in charge of your estate, who you want to inherit your assets, and any protections or restrictions you want to place on receipt of those assets. So rather than relying on state law to make these decisions, the court will be following the instructions in the Will.

If you want to avoid probate, then other planning tools and strategies should be considered.

Probate is a Quick Process

How long probate takes can depend on a number of factors, including what state you live in, whether there are complicated assets such as businesses or assets in multiple states, or even family dynamics such as second marriages or family disputes. Another factor that can affect how long probate takes is how busy the probate court is at the time of filing. Many courts were shut down during the pandemic and have a backlog of cases. Others are running virtually, with fewer staff and/or on reduced schedules which can increase probate timelines.

Considering all of these things, probate typically takes anywhere from a few months to a few years to complete.

Probate Expenses Will Exceed Estate Funds

After going through probate, many people fear there won’t be anything left from the estate. You might think you’ll have to use all the assets from the estate to pay for the probate costs and fees.

Since probate involves going to Court, there will be Court costs and filing fees. There will also be notices that need to be filed, certified copies and other documents and their associated fees.

If you decide to hire an attorney, you’ll have to pay their fees and costs in addition to Court costs and filing fees.  In many states, compensation is set by state law to equal a percentage of the estate. The percentage can vary but is often anywhere from 3%-6% of the value of the probate estate.

The Oldest Child Will Be Appointed as The Administrator

There’s no hard and fast rule that a judge has to appoint the oldest child as an estate administrator in the absence of a will. Really, any interested party can apply, and a judge will select the candidate they believe is best suited for the position. Generally speaking, however, most state laws forbid individuals under age 18 or convicted felons to serve as the executor of someone else’s estate.

If you have additional questions about the process of probate, contact our law office at 941-909-4644 or 763-420-5087 to speak to an estate lawyer. We are here to provide you with the information and guidance you need to close out your loved one’s estate in the fastest and most cost-effective way possible.

If you would like to learn more about how you can make it as easy and inexpensive as possible for your family if anything were to happen to you, click here for our free workshop.


Chuck Roulet
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Nationally Recognized Estate Planning Attorney, Author, and Speaker
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