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What is Probate?

Posted September 05, 2012 in Advice Column, Johnston

The process of court-supervised administration of an estate is called “probate.”

If you have a will, upon your death your executor will present it to the court. It is a common misconception that merely possessing the will vests someone with the authority to act. In order for a will to be effective, it must be admitted to probate. If you die without a will, the probate court still has control over the assets of your estate.

Q:    What can I do to avoid probate?

A:    Some clients have a strong desire to avoid probate altogether. This is generally based on misinformation regarding the process. Court supervision of the probate process ensures that your executor or the court-appointed administrator handles your estate fairly, legally and according to your wishes. The personal representative has a duty to report the assets, debts and disbursements of the estate to the court, to ensure that the will or the rules of inheritance are followed.

Q:    Doesn’t probate make my entire estate a matter of public record?

A:    Probate does make the assets of the estate a matter of public record. However, the only item that is made available to the general public is the notice of opening the estate, which is published in the newspaper. For somebody to discover the assets of your estate, they must know how and where to access the court records and files.  Even though the entire estate file is “public record,” as a practical matter most people do not know how to review this information.

Q:    Doesn’t probate take a long time?

A:    Probate takes about six months. Iowa law requires that notice of a new estate be published in a local newspaper for two consecutive weeks. This is so that any unknown creditors of the estate can file claims. After that, the estate must remain open for four months. There may be other factors which require a longer probate period, but in general the probate process should take only about six months.

Q:    Isn’t probate expensive?

A:    Attorney’s fees and court costs cannot be paid until the estate closes. In Iowa, attorney’s fees are statutorily-controlled and are approximately 2 percent of the gross value of the estate. The personal representative is also entitled to fees in the same amount. By comparison, other methods of asset disposal (like a revocable trust) have no fee caps.

 





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