Probate and The Avoidance Thereof
So much has been said and printed about the importance of avoiding probate that most people, if asked, will confirm that they want to avoid probate, even though they may have no real understanding of what probate is or why one should avoid it. So what is probate, anyway? Why do so many people say we should avoid having our estates go through probate? How does one avoid probate? Is there anything good about probate? These are important questions, and it may help to have some answers.
WHAT IS PROBATE?
Probate is a legal proceeding that takes place following one's death, during which the administration of certain portions of the estate are subject to court supervision. The primary probate proceeding takes place in the county where the deceased person resided; and “ancillary” probates will occur in every other state where that person owned real property in his or own name alone or as a tenant in common. The probate period continues until the legal obligations of the estate have been met and the court orders the final distribution of the estate. The purpose of probate is to provide a legal forum for:
Assets that pass to one’s beneficiaries by will are going to be subject to probate, unless the estate qualifies as a “small estate” or passes entirely to the decedent’s surviving spouse. Most estates that include real property (land, buildings) will exceed this minimum value. If there is no will, the deceased person's assets will pass to his or her heirs at law in accordance with the state statutes governing intestatesuccession ("intestate" is a Latin term that means dying without a will). Intestate estates also are subject to probate.
Throughout the United States, every county in every state has a probate court -- in some states referred to as surrogate, chancery, or common courts. No matter what they are called, these courts all have the responsibility for supervising the transfers of assets that occur by will or by intestacy. Since the purpose of the probate courts is to protect the beneficiaries and creditors and provide for an orderly transfer of the estate, why are so many people so anxious to avoid probate?
THE PROBLEMS WITH PROBATE
Probate has gotten a lot of negative press over the years. Back in 1965, a book called How to Avoid Probate, by Norman F. Dacey, was published, arguing that probate could and should be avoided. This book became a best-seller and was still in print more than thirty years later. Dacey's book is seriously flawed in many ways, but he did have good reasons to question the need for probate.
There are four main reasons why probate avoidance has gained such popularity over the years. The major disadvantages of probate are the delays, the paperwork hassle, the added expense, and the publicity. Let's examine each of these in turn.
Delays. Because probate involves a series of steps and waiting periods that must be completed sequentially, in many states probate easily can take a year or longer before even a simple estate is settled. There are tasks that must be completed even before the will -- if there is a will -- can be admitted to probate: the will must be found, an attorney must be hired (unless the executor wants to attempt to do the probate without an attorney), the persons named in the will must be notified that the will is to be probated, the assets must be identified, and more.
Once the will is admitted to probate – a process that typically takes a month or more – the court will issue “Letters Testamentary” to the person appointed as executor of the will (or “Letters of Administration” to the appointed administrator of the estate if there is no will). The “Letters” document is what authorizes the personal representative of the estate to gain access to the decedent’s bank and securities accounts, set up an estate bank account, sell estate property, and deal with all estate administration matters. Once the “Letters” are issued, there is a required time period during which any possible creditors of the deceased person are to be notified of the probate and given an opportunity to file their claims against the estate with the court. This creditor claims period can take three to six months, varying from state to state (California’s creditor claims period is four months). Then, after creditor claims have been resolved, taxes paid, assets appraised (and possibly sold, if necessary), and other assorted details finalized, the executor normally will file a final accounting with the court and the court can issue an order authorizing the distribution of the estate assets to the intended beneficiaries (if there is a will) or to the intestate heirs (if there is no will). Generally speaking, small or simple estates may take nine to twelve months to go through probate; larger or more complicated estates can take years before probate is completed.
During the course of probate administration, the intended beneficiaries do not have ready access to the estate assets. This can make it hard to pay bills for a while or sell things that need to be sold until the court allows it. A surviving spouse and dependent children may be cut off from the only resources they have to live on, having lost the income of the deceased breadwinner. Courts will permit certain limited "allowances" to be paid to the family for a period of time, but there can be some tense moments while the family waits for this.
Even in a very simple probate estate, such as that of an elderly parent with no debts whose will leaves everything to his only daughter as sole beneficiary, that daughter still must wait until the probate court authorizes distribution of the estate before she can receive her inheritance. In California, the court in some cases may grant a preliminary distribution of up to half the value of the estate before the probate is completed, but even this cannot occur until several months into the probate process.
More complex estates can take years to probate, and the longer it takes, the more costly it can be. The probate of Marilyn Monroe's estate, for example, took 18 years. Although Marilyn died in debt, during the course of probate her estate received income in excess of $1,600,000, mostly from movie royalties. When the estate was finally settled, Marilyn's debts of $372,162 had been paid, the taxes were paid, the attorneys were paid, and the executor was paid, and a grand total of $101,229 was left for distribution to Marilyn's heirs.
It has been reported that the estate of Howard Hughes took eleven years to probate. Thirty-two wills were filed with the court, and not one was found to be valid. Hughes' Nevada attorney fees alone sucked $8,500,000 dollars from his estate.
Paperwork Hassle. Probate involves a lot of paperwork that normally requires an attorney's assistance to complete and file with the court. There are petitions, notices, appraisals, accountings, creditor claim forms, and other paperwork that can result in case files several inches thick. Probate in some states is easier than in others, and if you happen to live in a state like California where probate is fairly complicated, the executor almost inevitably will have to hire an attorney to handle the court filings, notices, and other paperwork involved in the probate process. This can be even more problematic if the executor does not live in the same county (or even the same state) where the will is being probated. Because the executor has to sign many of the documents that are filed with the court, this can create further time delays as documents have to be mailed back and forth.
Is it possible to probate an estate without hiring an attorney? Theoretically, yes. If you are inclined to try doing a probate in California without an attorney’s help, there is an excellent resource available through Nolo Press entitled How to Probate an Estate in California, by Julia Nissley (be sure to get the most recent edition). The “do-it-yourself” approach is not recommended, however, unless you happen to be highly self-disciplined and well-organized, have a lot of patience, and have a lot of free time.
The more complicated the estate happens to be, the more paperwork it will entail to deal with the assets, the creditors, and the beneficiaries. If there are any problems, such as a will contest or other litigation, this will only add to the paperwork hassle.
Expense. Possibly the biggest drawback to probate is the expense. The probate estate is subject to probate fees that are payable to both the executor and the attorney for the estate. Those fees are regulated by state statute. Depending on your state, the fees may be stated as a fixed percentage of the assets in the probate estate, or the fees may be stated as "reasonable compensation." Where the fees are based on a percentage of the assets, these fees can be thousands of dollars even on smaller estates, and tens of thousands (or more) on medium-sized to larger estates. [For California’s statutory executor's fees, see “The Cost of Probate” at the end of this article.] In addition to the statutory fees, typically there are court filing fees, legal notice publication fees, and appraisal fees, all of which can add hundreds or even thousands of dollars to the cost of probate.
In many cases, the executor's fee is not an issue because the executor, who may also be a family member and even a beneficiary of the estate, may elect to waive his or her fee. Seldom is that the case with the estate's attorney, however, and the attorney's fee can equal or even exceed the statutory executor's fee for probate. If the state does have a fee schedule for the attorney, that fee schedule will only cover those services that are considered to be ordinary probate legal work. Any extraordinary services the attorney may render, such as handling the sales of estate property or preparing an estate tax return, can result in additional attorney's fees above and beyond the stated statutory fee. “Extraordinary” fees must be approved by the court, however.
In a probate proceeding, the assets in the estate are valued by appraisal. Those appraised values become the basis for the statutory fees whenever the statutory fees are based on a percentage of the assets. It is important to note that when the total value of the estate is calculated in order to determine the statutory probate fee, no adjustment is made for the liabilities of the estate. In other words, loans and other debts are not deducted from the value of the assets -- the statutory probate fees are based on the gross value of the estate, not the net value. For example, the statutory fee on a $300,000 estate in California is $9,000, which equates to 3% of the gross estate value. This amount is payable to both the attorney for the estate and the executor, so the total statutory fee can be $18,000 if both people take their full fee. (Filing fees, legal notice publication fees, and appraisal fees may add another $500 or more.) If the $300,000 estate consists of a $280,000 house and $20,000 in cash and other property, but there is a mortgage on the house for $210,000 and $10,000 in other debts, that leaves a net estate value of $80,000. When the $18,000 in fees for the attorney and executor are deducted, these fees come to 22.5% of the net value of the estate -- a much higher percentage in terms of real dollars.
If the estate does not include enough cash or other liquid assets to pay the statutory fee – for example, if the only asset is the family home – it may be necessary either to sell that family home, borrow against it (if possible), or have a beneficiary use his or her own funds in order to pay the cost of probate.
Probate avoidance for many people becomes primarily an economic issue. Even if the executor waives his or her fee, it is highly unlikely that the attorney for the estate will do likewise. Even if the attorney agrees to accept a fee that is less than the statutory fee, it is still a significant expense for the heirs. Saving these fees can mean more money that stays in the family or that is available to pass on to charity.
Publicity. Probate is a public proceeding. Any probate file in the courthouse is a matter of public record and available for public inspection. This means that all the assets and liabilities of the probate estate will become a matter of public record. All beneficiaries of the estate and what they are to receive will become a matter of public record. The appraised values of the assets are a matter of public record. Anyone who wants to can go to the county courthouse and ask to see the probate file and get photocopies of what is in the file unless the judge orders certain information to be deemed “confidential” (such as a person’s Social Security number).
For most of us, this is not a big problem, because there may not be anyone outside the immediate family who would have any interest in looking at the court file. However, this can be a much more serious problem in some cases, particularly for people who are famous.
Bing Crosby is a good example. When Bing’s first wife died, they each had wills, which meant that her estate went through probate. The probate process requires all of the decedent’s probate assets to be listed and valued and all known creditors notified. Because the probate file is a public record, reporters could simply go to the courthouse, ask to see the probate file, and find out what Mrs. Crosby owned, what debts she had, and who was named as a beneficiary of her estate. This was not pleasing to Mr. Crosby; consequently, when Bing died, his estate proceedings were much more private, as his assets were in a living trust and not subject to probate.
People who are not famous also may have good reason to avoid the publicity of probate, especially if a small business in a competitive market is part of the estate. If the death of a small business owner forces the sale of the business, a competitor can easily go to the courthouse, look at the probate file, and find out what the business appraised for and what other assets and debts the decedent had, and thereby obtain crucial information allowing the competitor to make an offer that may be well below the true market value if the estate is strapped for cash and cannot keep the business going.
Also, because probate can take quite a long time and many estate beneficiaries do not like to wait for their money, this can make them a target for those who prey upon such folks by offering to lend money against the future inheritance, often at egregiously high rates of interest. An unoccupied house listed as an asset of a probate estate may become an easy target for vandals, thieves, or persons who could break in and make it their temporary home if no one is regularly checking on the property.
ARE THERE ANY ADVANTAGES TO PROBATE?
Even though the disadvantages to probate give us good reasons to want to avoid probate, there are nevertheless some benefits to probate that must be considered.
Formal proceedings. A formal probate will help to ensure that the estate is properly settled and everything that ought to be done gets done. Informal estate settlement often leaves important matters unfinished, and problems can arise years later.
Automatic creditor claims cutoff. A probate requires notice be sent to all known creditors. If those creditors don't file a formal claim against the estate, their claims will be forever barred after the passage of the creditor claims period. This can be particularly important for estates where contingent liabilities may exist (e.g., pending litigation or potential future malpractice claims). Once the creditor claims period has passed, the law protects the estate from future liability for those past claims. This doesn't mean that probate will free the family of moral obligations to pay the decedent’s debts, but the executor must exercise caution in paying bills that are not legally enforceable. The heirs could challenge the executor’s right to use their inheritance to pay creditors if claims are not filed properly and in a timely manner.
Court supervision. The actions of the executor or administrator are subject to court supervision, and that person must account to the court for his/her actions. Non-probate estates do not have this safeguard, although court supervision can be requested if desired. In some cases, court supervision is the best way to protect the interests of all parties concerned, especially if there are disgruntled heirs who seek to challenge the will.
Court-ordered transfers of assets. A probate proceeding will result in a court order stating who is to receive what from the estate and authorizing the executor/administrator to transfer the assets to the proper persons. In some cases (non-probate situations), the lack of a court order can create problems or delays in getting the assets transferred to the proper persons. There may even be a cloud on the title to assets that ultimately cannot be cleared up until a formal probate is finally done, years after the death of the original owner.
DOES EVERYTHING HAVE TO GO THROUGH PROBATE?
No! Many assets do not go through probate, including assets held in joint tenancy, assets that have named beneficiaries, and assets held in living trusts. Small estates may avoid probate, and estates passing entirely to a surviving spouse may avoid probate.
Assets that are held in joint tenancy titling – “Joint Tenants,” “Joint Tenants With Right of Survivorship,” “JT TEN”, or “JTWROS” – will not go through probate, so long as there is one joint tenant still living. Title passes entirely to the surviving joint tenant, although some paperwork may be necessary to document the change. Note, however, that probate most likely will not be avoided at the death of the last surviving joint tenant if the asset passes to that person’s beneficiaries through his or her will. In California, spouses (and registered domestic partners) may hold title to assets as “Community Property With Right of Survivorship”, which operates similarly to joint tenancy in avoiding probate at the first person’s death.
Assets payable to a surviving named beneficiary will avoid probate. Examples include life insurance proceeds, annuities, IRAs and most other retirement plans that provide for beneficiary designations. Even U.S. savings bonds allow the owner to name a designated beneficiary. The designated beneficiary must be a living person; otherwise the asset still may be subject to probate. If you name “my estate” or “the estate” as your beneficiary on such assets, this will subject the asset to probate.
Assets held in the form of a “pay on death” (P.O.D.) or “transfer on death” (T.O.D.) account will pass to the person named to receive that account upon the death of the account owner. Most banks and many mutual funds and brokerage accounts can be set up with a P.O.D. or T.O.D. beneficiary designation. So long as the named beneficiary survives the account owner, this arrangement will eliminate the need to probate the account. Another variation of this is the “in trust for” (ITF) account. Such an account might be titled, “Mary Jones, in trust for Daniel Jones.” Even though there is no actual trust per se, this operates the same as a P.O.D. or T.O.D. account, and Daniel Jones can access the account upon presentation of Mary Jones’ death certificate. If the named beneficiary does not survive the account owner, the account may end up going through probate.
Assets held in living trusts will avoid probate. Living trusts may be revocable during the lifetime of the creator of the trust, or they may be irrevocable, depending on the purpose for which they are created. Either way, the assets in such trusts pass to the trust beneficiaries according to the terms of the trust and are not subject to probate proceedings. If one has a living trust, but some assets are not in the trust at the time of death, those non-trust assets may have to go through probate in order to get put into the trust.
For any of these methods of avoiding probate, it is important to remember that assets held in joint tenancy, or with designated beneficiaries, or in living trusts, will not be subject to your will. If you leave a particular asset to one person in your will, but then you put someone else on title as a joint tenant, that asset will go to the surviving joint tenant, not to the named beneficiary in your will. One elderly woman wrote her will, leaving her entire estate to her son and daughter in equal shares. Most of her estate consisted of about $300,000 in bank accounts. Because her daughter lived locally and her son was back East, Mom added daughter on as a joint signer on the bank accounts so that daughter could access the funds to pay for Mom’s care if necessary. Mom died. Son expected his sister to comply with the terms of the will and divide all assets equally with him, but his sister said that all the bank funds were hers, since she was a joint signer on the accounts. Son sued his sister to get his share of the inheritance. He lost. The accounts passed to the surviving joint tenant, and the bequest in the will was of no effect.
Assuming your assets do not pass to someone via any of the above methods, what happens if you die without a will? That depends on whether you are survived by a spouse (or a surviving registered domestic partner) and/or have children who survive you. It also depends on whether your assets are community property or separate property. In California, if you die intestate (without a will) and all your assets are community property, your entire California estate will go to your surviving spouse or registered domestic partner. If you have separate property, it will all go to your surviving spouse if you have no children; but if you have a surviving spouse (or registered domestic partner) and surviving children, your separate property will be divided between them. If you die leaving a surviving spouse/partner and only one child, half of your separate property will pass to the surviving spouse/partner, and half will pass to the surviving child. If you die leaving a surviving spouse/partner and two or more children, one-third of your separate property will pass to the surviving spouse/partner, and two-thirds will pass to the surviving children in equal shares. If you die leaving no surviving spouse or partner, your estate will all go to your children (or possibly to some of your grandchildren, if a child is deceased but left surviving children of his or her own). If you have no surviving spouse/partner or “issue” (i.e., children, grandchildren, great-grandchildren, etc.) and you die without a will, your estate goes to your surviving “heirs at law”: to your parents, if living; otherwise to your siblings, if any, or their issue, if any; otherwise to grandparents, or aunts or uncles, or cousins, etc. There is a common misconception that if you die intestate, your estate will go to the State. This only happens if you die intestate with no surviving relatives.
If the most important person in your life is a person who is not your spouse, child, or registered domestic partner, the law will not step in to provide for that person. If you die without properly planning your estate, the person you care about the most may get nothing from your estate.
If you die without a will, or if you fail to keep your will (or trust) current, your estate very well may end up going to relatives you don’t know or don’t like. One woman’s will was poorly written, leaving specific assets to various people and charities, but failing to include a “residuary” clause (a provision leaving “everything else” to someone). At the time of her death, every specific asset she had given to named beneficiaries in her will had been sold during her lifetime, so those specific gifts were no longer valid. Without a designated residuary beneficiary, the court ruled that her estate would go to her adopted daughter, from whom this woman had been estranged for eighteen years because of the daughter’s drug abuse and unstable lifestyle. Even though the mother had intentionally made no provision for this daughter in her will and wanted her to receive nothing, the mother’s failure to update her will totally negated her real intentions.
OTHER PROBATE AVOIDANCE METHODS
Small Estate Proceedings. In California, a “small estate” is defined as an estate totaling less than $100,000, with real property not exceeding $20,000 in value. If the assets are all in the name of the decedent and do not pass to someone else by joint tenancy, beneficiary designation, or some other means, the assets in a small estate may be transferred without probate by using a notarized “small estate affidavit” procedure (see Probate Code §13101), but only after at least 40 days have passed since the death of the owner of the asset. If there are no individual assets worth more than $100,000 but the combined total of those assets exceeds $100,000, those assets generally will have to go through probate.
Property Passing to Surviving Spouse. Another exemption from probate in California is available when the decedent’s entire estate passes solely to the surviving spouse. This doesn’t work if any portion of the estate is left to anyone other than the surviving spouse. It also doesn’t work if the estate is left to a trust for the benefit of the surviving spouse.
Lifetime Gifting. If assets are given away to one’s intended beneficiaries during one’s lifetime, then probate can be avoided for those assets. Obviously, if you give something away, you don’t own it any longer; therefore, it is not part of your estate when you die. Of course, you also lose control over the things you give away, and those assets are no longer available to you if you need them later on. There may be other unforeseen problems as well.
For example, an older person transfers title on her home to her adult children in order to avoid probate, but she continues to live in the house. This can create all kinds of confusion or problems. Does the parent have to pay rent to the child? Who pays the property taxes, insurance, and the cost of repairs or maintenance? What if the child ends up deeply in debt or loses a lawsuit? Could there be a forced sale of the parent’s house in order to pay the child’s liabilities? If the proper county forms are not completed in a timely manner as part of the transfer of title, the property could be reassessed and the property taxes increased. If the parent thinks he or she might need a reverse mortgage on the home in order to provide them with additional funds in the future, then it is a really bad idea to transfer the house to someone else in order to avoid probate. You cannot get a reverse mortgage on property you no longer own, and the child can’t get a reverse mortgage for the parent on a house that is not the child’s personal residence. Also, there may be federal gift tax implications to deal with, and the gift recipient will lose out on the step-up in cost basis that would otherwise occur if the asset was retained in the original owner’s estate and transferred at their death. Loss of the step-up in cost basis can result in significant capital gain taxes that otherwise might have been avoided if and when the house is sold by the new owner.
COMMON MISCONCEPTIONS ABOUT PROBATE
“If I have a will, that means my estate won’t have to go through probate.” WRONG! Many people somehow think that your estate will only go through probate if you don’t have a will. Actually, your estate will go through probate whether you have a will or not if your estate is large enough and you don’t have a valid plan in place for avoiding probate. Some confusion may arise from the fact that assets held in a living trust will not have to go through probate.
“If I avoid probate, I won't have to pay any estate taxes.” FALSE. Your taxable estate includes everything you own or have an interest in at death, whether it goes through probate or not. Avoiding probate eliminates certain statutory fees, but it does not eliminate estate taxes. [Most estates over $3,500,000* will have estate taxes to pay.]
“Some people simply don't bother with a probate when their spouse dies and they don't have any problems, so probate isn’t really necessary.” WARNING: many who have done this still have the deceased spouse on title to real estate or other assets, and some day they will find that it may not be possible to sell these assets until the deceased spouse's estate has been probated.
“I can avoid probate just by putting all my assets in joint tenancy.” MAYBE, but there are potential problems with using joint tenancy as a probate-avoidance strategy. First, it requires the joint tenant to survive you. This isn’t as sure a thing as one might expect. Second, there may be gift taxes implications when making someone a joint tenant. Third, an untrustworthy joint tenant could abscond with bank or brokerage account assets. Fourth, adding someone as a joint tenant on your assets can expose your assets to the other person’s creditor claims or other liens.
There are still lots of people who don’t feel any compelling reason to avoid probate. Ultimately, setting up a revocable living trust or coming up with some other probate avoidance plan can be more hassle and expense than some folks want to bother with. After all, having the estate go through probate is not an inconvenience for the person who just died, since they don’t have to deal with it; rather, it is that person’s beneficiaries who are inconvenienced. If the beneficiaries are distant relatives or charities, the testator may not care if the estate goes through probate. In some cases, if a challenge to the estate plan is expected, it may make more sense to probate the estate so that the court can deal with the disgruntled heirs. It is important to make an informed decision about the best way to leave your estate to your intended beneficiaries, and whatever you decide to do, get it done. Don’t leave things to chance.
THE COST OF PROBATE
The fees paid to the executor and to the estate's attorney in California for their services in handling a probated estate are set by law (See California Probate Code Sections 10800 through 10814), and represent a portion of the value of the assets that go through probate. These "statutory fees" range from 4% of the first $100,000 of assets that go through probate down to 1/2 % or a "reasonable amount to be determined by the court" for probate estates in excess of $25,000,000. [Note that estates valued below $100,000 are normally exempt from full probate proceedings; assets are typically transferred by affidavit.]
The percentages set forth in the California Probate Code are as follows:
These fees work out to the following amounts paid to both the executor and the attorney for the estate:
These fees are based upon the gross value of the assets that go through probate as shown on the estate inventory, plus the income (dividends, rents, interest) collected during probate, plus any gains from the sale of estate assets, less any losses upon the sale of estate assets. Either the executor or the attorney can waive all or a part of their statutory fee. If taken, the fee is taxable income to the recipient. If there is more than one executor or attorney, the fee is divided accordingly.
Extraordinary fees (i.e., fees payable in addition to the above statutory fees) are granted for appraisals, tax work, costs of sale of estate assets, litigation, expenses for running the decedent's business, and any unusual matters. All of the statutory and extraordinary fees are paid by the estate at the conclusion of probate and upon a court order.
In addition to these fees, there are separate fees for the probate court filing fee (which can range from a few hundred dollars to several thousand dollars, depending on the size of the estate), a legal notice publication fee, appraisal fees, and fees for certified copies of court documents.