What Is Probate?
“Probate” is much maligned. To hear some folks talk, having your estate subject to probate is worse than dying. What is all the fuss about?
Probate is a title proceeding. If a person dies owning property, the question arises “Who is the next rightful owner?”. Probate is the procedure by which the ownership is determined.
If the decedent left a will, the will is filed with the Register of Wills, the executor (who is the person in charge of the estate) is sworn in, and notice is given to all persons who have an interest in the estate, including creditors. Anyone who wishes to contest the will, which means to object to the will, may do so within a prescribed time period. Grounds for contesting a will might be that the decedent did not know what he was doing when he signed the will. The law calls this lack of “testamentary capacity.” A will can be contested on the grounds that the decedent was under “undue influence” at the time she signed the will. For example, someone was pressuring and pushing her, and the decedent was susceptible to the influence. An improperly executed will can be contested also. For example, a will may not have enough witnesses, or the witnesses may be disqualified persons. In Pennsylvania, the forum for all these sorts of “contests” or objections is the county Orphan’s Court.
If the decedent left no will, or if the decedent’s will is found to be invalid, then the next rightful owner(s) of the decedent’s property are determined by state statute. This statute determines the decedent’s heirs. The heirs of a decedent are first, children or more remote issue, then parents, and then siblings and their issue. Also, a surviving spouse is entitled to a share, usually about one-third (1/3) of the estate.
There is a common misconception that a surviving spouse inherits all of the deceased spouse’s
property. If there are children in the marriage, the spouse’s share of the estate is one-third. If there are no children, the spouse takes the first $30,000 plus one-third; the decedent’s parents or other relatives take the remaining two-thirds. This is the distribution for property that was in the decedent’s name alone. If property was held jointly with the surviving spouse, it passes immediately on death to the surviving joint owner. A will or the intestacy statute only operates on property that was solely owned by the decedent.
Contrary to popular belief, if you die without a will, your property does not go to the state. The probate proceeding is still necessary to determine who are the heirs, and in what proportion they take the decedent’s property. Creditors are also given the opportunity to come forward with their claims.
The court appoints an executor or an administrator. An executor is a person or bank or trust company named in the will to be responsible for the settlement of the estate. An administrator is someone appointed by the court to administer the will if the named executor is unavailable or unwilling, or to administer the estate if there is an intestacy. When the decedent dies without a will, that is called dying intestate.
So what’s so terrible about probate? Nothing. It is a fairly simple and logical process. Probate gets its bad reputation from the professional fees that are charged. The executor or administrator and any professionals such as attorneys and accountants who are engaged to assist with the estate settlement process are to be compensated. The duties of the executor and her advisors go far beyond the probate process, including the filing and payment of federal estate taxes, Pennsylvania inheritance tax, and so on. The executor or administrator and attorney are, of course, entitled to be compensated for their work on behalf of the estate. It is common in this area for executors and administrators and for attorneys to compute their fee for services as a percentage of the assets included in the estate, say five percent, or perhaps less. The problem with this approach to fees is that it does not always bear a reasonable relationship to the work and responsibility involved.
High fees are the source of most of the horror stories one hears about probate. The procedure itself is not expensive; it is the professional fees charged that are sometimes excessive. The answer to this is to be an educated consumer. When planning your estate and if you are the executor or administrator or an estate, you need to make sure that the compensation arrangements that you enter into with professionals are fair and reasonable. There is no question that the services are valuable and deserve to be compensated. The question is, how much? The leading case on attorneys’ fees in Pennsylvania says that reasonable compensation takes into account the amount of work, the time involved, the results obtained, the amount of money or value of property in question, and the professional skill and standing of the attorney.
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