PROBATE

These figures were taken from a Kiplinger article on probate in 1997 in concert with The Easy Way to Probate by Kay Ostberg. While probate is not always bad- as was addressed in the Kiplinger commentary and in my other material as well, - remember that if there is property out of state that is left though a will, you will need a probate in each state. And equally important, probate continually bombards the widow or widower (and other loved ones) with constant reminders that a loved one has died. That certainly does not make the grieving process better. If other factors validate a living trust, remember that it can reduce the amount of time and make the process easier- much to the emotional betterment of survivors. Further, it eliminates the need for separate probates in other states which will normally save lots of additional time and money


The Probate fees were based on a range of assets from a gross $350,000 to a gross $800,000. Why the comment about "gross" probate- at least for many states? Here is the impact for California. Assume a net estate (after loans, costs, etc.) of $650,000. That equals the 1999 lifetime exclusion- hence no federal estate tax. But the gross estate is what is taxed for probate. Phrased another was, assume you had a house worth $500,000 with a $400,000 loan. While there is no federal estate tax since the net estate was only $100,000, probate fees are applied against the $500,000 GROSS estate. Hence you get probate fees against the entire value of the estate, not just on the equity of $100,000. That can hurt your pocket far worse than getting a inexpensive living trust that avoids that type of expense. In California, I usually suggest that gross estates of around $300,000, that have some additional complexity, may wish to consider a living trust. (This is not "cut and dried"- depends on a myriad of other issues. Further, you will specifically need to check your own state for particulars.)

In any case, when you need an attorney, don't pick just anybody thinking that the cheapest way out is the best. I would at least talk to attorneys with the American College of Trust and Estate Counsel. I think these are the solid "professionals" in estate planning and they might make a difference on a convoluted estate. But why not call them anyway and see how their fees compare to the ordinary attorney that does estates now and then? You might be surprised. Further, you never know when something might go wnrog.

Another issue. Probate is normally a fixed percentage of assets. Many attorneys will work for an hourly rate, but which ones? And who is going to remember to negotiate the hourly rates? The bereaved survivor? Will the attorney do it unilaterally? Possibly- but not a given particularly where the statutory fees would be greater. And exactly what is a "reasonable" fee? Do you know? Do you want to get involved in a debate with the attorney as to what they will do, when, how, for how long, with who, etc???? Doing and negotiating estate planning AFTER a loved one has died (post mortem planning) is generally bad, BAD, BAD. Not too many people I know are going to want to go out after a loved one has died and call on several attorneys to figure out the best/cheapest one to use. Work out all the details beforehand. That's whey some elements of a living trust- which is first and foremost a management tool- can save money and heartache beyond the other elements that it is normally associated with (tax reduction).

That said, you are probably going to have to/should use an attorney even with a living trust (living trusts are not free from attorney and CPA fees as many intimate) but the pre planned aspect of a living trust may keep fees more reasonable and less "emotionally charged". You cannot put a price on tears.


And while almost all focus on attorneys fees, recognize that the personal representative/executor is also allowed to charge fees. In many states, these fees are NOT necessarily the same as what the attorney may charge and need to be checked separately. The importance of executor fees may be somewhat removed if there is only one beneficiary. However, once there are more beneficiaries, it is my contention that many personal representatives should be paid for the time and additional anguish of the emotional work and effort.

Court supervision refers to how involved the court will remain in the execution of the executor's efforts. Small estates (varies with each state- now $100,000 in California) are subject to even less court involvement. So are the states that utilize the streamlined UPC- Uniform Probate Code. In such cases perhaps only one court appearance may be necessary. Nonetheless, if something can go wrong, if the estate contains real estate, hard to value assets, where the beneficiaries are contentious, probate can cause additional grief since one is dealing with more people who don't know you and you don't know them..


Lastly, remember, I am the only person doing these forms and they may be slightly out of date, laws have changed since printing, etc. You must absolutely check the FULL state law since I am only addressing an overview of what the law provides.

State Attorney Probate Fees- average fees Court Supervision Typical? Normal time for probate if Federal Estate Return Required. (Months)
Alabama Set by Court

$250- 500

Y 7
Alaska Reasonable

1,500- 2,000

N * 7
Arizona Reasonable

2,000+

N* 10
Arkansas Percentage

1,200- 7,500

Y 9
California Percentage

average 3%

Y 6- 12
Colorado Reasonable

2,000- 3,500

N* 6-12
Connecticut Reasonable

750- 10,000

Y 6
Delaware Percentage Y 12
District of Columbia Reasonable and approved by court N 9- 12
Florida Reasonable

2,500+

Y 6- 12
Georgia Reasonable

500- 1,500

N 9
Hawaii Percentage

3,000

Y* 6- 8
Idaho Reasonable

1,500- 2,000

N* 6
Illinois Reasonable N 8
Indiana Reasonable VARIES 12- 18
Iowa Percentage Y 12
Kansas Reasonable

5,000- 10,000

Y 12
Kentucky Reasonable

800- 1,000

Y 6- 8
Louisiana No statutory provision

2,000- 3,000

Y 3- 6
Maine Reasonable N* 6- 9
Maryland Reasonable N 6- 9
Massachusetts No provision Y 9- 12
Michigan Reasonable N* 5- 6
Minnesota Reasonable

2,000+

N* 6
Mississippi Reasonable

750- 1,000

Y 6
Missouri Percentage VARIES 7- 8
Montana Percentage N* 6
Nebraska Reasonable N* 12
Nevada Reasonable with justification

3,000

Y 9- 12
New Hampshire No provision Y 9- 12
New Jersey Reasonable

1,000

N* 3
New Mexico Percentage

1,000- 2,000

N* 4- 6
New York Reasonable N 24
North Carolina Reasonable Y 6- 9
North Dakota Reasonable

1,200- 2,000

N* 9- 12
Ohio Varies by county Y 9- 12
Oklahoma Reasonable

2,000

Y 4- 6
Oregon Reasonable Y 6- 7
Pennsylvania Percentage N* 9- 15
Rhode Island Reasonable

1,000- 5,000

N 8
South Carolina Reasonable

2,000

N* 9- 12
South Dakota Reasonable N* 4- 6
Tennessee Reasonable

3%- 5% average

200- 500

Y 12
Texas Reasonable N 4- 6
Utah Reasonable

900

N* 5
Vermont No provision Y 4- 5
Virginia Review by Commissioner of Accounts

2,000- 3,000

Y 12
Washington Reasonable

2,000- 10,000

N 4- 6
West Virginia Reasonable

750 or less

N 6
Wisconsin Reasonable N* 6- 12
Wyoming Percentage Y 8

As stated, this is merely an overview form that needs a lot of individual state research. But it should help you get started in the right direction.

3/99: These are the states that have adopted the Uniform Transfer at Death Security Registration Act. "Your stockbroker or investment company provides a simple form, on which you enter the name of whomever you want to inherit the securities after your death. (These people are called transfer-on-death or T.O.D. beneficiaries.) You're free to change beneficiaries as long as you live.

When the time comes, the beneficiaries you named can claim the securities directly from your broker or investment company. No probate court is involved."

Alabama Maryland Oklahoma
Alaska Minnesota Oregon
Arizona Mississippi Pennsylvania
Arkansas Missouri South Dakota
Colorado Montana Tennessee
Connecticut Nebraska Texas
Delaware New Jersey Utah
Florida New Mexico Virginia
Idaho Nevada Washington
Illinois New Hampshire West Virginia
Iowa North Dakota Wisconsin
Kansas Ohio Wyoming

IS PROBATE BENEFICIAL?? (2000) Well, its not always bad but I think this commentary from Nolo Press might help to put it in focus- "There are two big problems with probate: It usually ties up property for a year or more. It's expensive. Attorney and court fees commonly eat up 5% of an estate's value."

"This wouldn't be so bad if probate served a useful purpose, but usually it does not. People who defend the probate system--mostly lawyers--assert that probate prevents fraud in transferring a deceased person's property and that it protects inheritors by promptly resolving creditors' claims. But in truth, most property is transferred within a close circle of family and friends, and few estates face large creditors' claims."

"The actual probate functions are essentially clerical. "

As for those articles/attorneys who say the cost is not necessarily prohibitive since you can negotiate the rates- rubbish!!! If a loved one has just died, someone is going to tell me that the survivor is going to go out and interview several attorneys to see which one might give the best rate??? Get real. The anguish and sorrow of death usually means that an attorney might have been selected via some referral that is obviously not checked out. A fine example is when my brother in law died unexpectedly 7 years ago in Massachusetts. My sister was given a referral by the funeral director- who apparently didn't have a clue as to what was needed. Anyway, when I got back to Mass. a couple weeks later, it was obvious he wasn't that good at all- yet perceived by the local crowd as one of the best attorneys. I don't fault my sister save for the fact they didn't even have a will. At least if they had done some planning, the scenario would not have been so bad.

State Probate costs (Schwab)
State Approximate cost of Probate (%)
Alabama 3%
Alaska 4
Arizona 0.1
Arkansas 3
California 4
Colorado 3
Connecticut 3
Delaware 3
Dist of Columbia 3
Florida 3
Georgia 3
Hawaii 3
Idaho 3
Illinois 3
Iowa 3
Kansas 3
Kentucky 3
Louisiana 3
Maine 3
Maryland 3
Massachusetts 3
Michigan 3
Minnesota 3
Mississippi 3
Montana 3
Nebraska 3
Nevada 3
New Hampshire 3
New Jersey 3
New Mexico 3
New York 3
North Carolina 1
North Dakota 3
Ohio 3
Oklahoma 3
Oregon 3
Pennsylvania 3
Rhode Island 3
South Carolina 3
South Dakota 3
Tennessee 3
Texas 3
Utah 3
Vermont 3
Virginia 3
Washington 3
West Virginia 3
Wisconsin 3
Wyoming 3

However, you need to recognize that if you have a small estate- say $100,000 in CA- there is NO probate fee. But if you have a large estate, the overall rate will be much higher

Probate Fees (California)

Statutory amounts to be levied by probate attorney and the executor- though they may be negotiated. But negotiating fees after a loved one has died in post mortem planning- a bad idea.

4% on first $15,000

3% on next $85,000

2% on next $900,000

1% on anything over $100,000,000

PLUS extraordinary fees

Average in California is 8- 10% of estate

Asset Size Irrespective of Loans Attorney Fees Executor Fee
$100,000 Not assessed for small estates Same
$200,000 $5,150 5,150
$300,000 $7,150 7,150
$500,000 $11,150 11,150
$750,000 $16,150 16,150
$1,000,000 $21,150 21,150
$3,000,000 $41,150 41,150
$5,000,000 $61,150 61,150

What is Probate? (VIRGINIA 2005)

Probate is the procedure whereby a Will is admitted to record in the Clerk?s Office, or the process of qualifying a person as Executor or Administrator of an estate, or the entire process of administering an estate.

To probate an estate in Virginia, you must go to the Circuit Court of the county in which the decedent resided at the time of death. It is requested that an appointment be made with the Probate Department to probate an estate.

It is necessary to probate an estate when the decedent has solely held assets; that is, assets that do not have a joint or co-owner with rights of survivorship, a beneficiary (on the security or account, not in the Will) or a pay on death designee. Assets include: real property, personal property, bank accounts, stocks and bonds, retirement accounts, life insurance policies and other types of securities.

If the decedent died with a Will, bring the following items to your appointment:

The original signed Will.

A certified copy of the death certificate.

Witnesses to the Will or depositions of witnesses, unless the Will is self-proving.

If the Will is self-proving, you do not need to bring the witnesses to the Will or depositions of the witnesses.

A named executor residing outside of Virginia who wishes to be appointed as executor must bring a Virginia resident to the appointment to either co-qualify or be designated as a registered agent; Virginia Code §26-59 governs which procedure to follow.

The approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles etc.) and the fair market value of real estate located in Virginia which must pass through probate.

The names, ages and addresses of the heirs at law. The heirs at law are not necessarily the beneficiaries of the Will. Heirs at law are determined by kinship to the deceased and are set by Virginia Code §64.1-1

If the executor named in the Will does not wish to serve, they must submit a notarized renunciation letter. A death certificate must be presented for the named executor if he/she is deceased.

Cash or check to pay the probate fees and taxes.

If the decedent left no Will, bring the following items to your appointment:

A certified copy of the death certificate.

Names, ages, and addresses of the heirs at law. The heirs at law are determined by kinship to the deceased and are set by Virginia Code §64.1-1

An administrator residing outside of Virginia who wishes to be appointed as Administrator must bring a Virginia resident to the appointment to either co-qualify or be designated as a registered agent; Virginia Code §26-59 governs which procedure to follow.

The person(s) having preference of appointment as Administrator for an Intestate Estate can be found Virginia Code §64.1-118

The approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles etc.) and the fair market value of real estate located in Virginia which must pass through probate.

Cash or check to pay probate fees and taxes.

Written waivers from all other competent distributees must be presented if qualification is within thirty days of the date of death.

Probate fees and taxes are based on the amount of the estate to be probated.

Probate Tax - (For example, if an estate is valued at $100,000.00, the State probate tax would be $100.00 ($.10 per $100.00), and County probate tax would be $33.33 (1/3 of total state probate tax).

Clerk Qualification Fees vary due to the types of probate documents that need to be recorded. Exact fees and taxes will be calculated and collected at the probate appointment.