One of the most frequent topics we receive questions about at Murray & Ziel, PLLC is probate. There are a lot of misconceptions about what probate is. This blog will give a brief background about what probate is and clarify some of the misconceptions about probate.
What is Probate?
Probate is simply the procedure for transferring title of the deceased person’s property to the proper heirs. It is also the process of paying creditors, including taxes for a deceased person.
When Is Probate Necessary?
Generally speaking, anybody who dies with a will, or intestate (meaning that they have no will and have not created any other testamentary documents such as a trust), should have his or her estate probated.
What is the Procedure for Probate?
Probate cases range from very simple to very complicated and every case is different. In most cases we typically need to have the will and death certificate before filing anything with the court. It is also important to identify who will be the executor (personal representative). Likewise, it is important to identify all heirs and creditors. Once the necessary documents have been secured, the executor identified, and the proper heirs and creditors identified, a filing can be made with the court. Typically, Murray & Ziel, PLLC files documents with the court that appoint the executor and give the executor judicial authority to act on behalf of the estate. We also help you obtain documents called letters testamentary from the Court which give the executor the authority to act on behalf of the estate for things like transferring title, accessing bank accounts, and paying creditors. If the estate owes money to creditors, it is oftentimes necessary to publish in the local newspaper. Our law firm helps you through that process as well.
Will the Government Take Taxes from the Estate Because of the Probate Action?
The greatest misconception that we encounter at Murray & Ziel, PLLC is that people should avoid probate so that the government does not tax the estate. Unless the estate is very large ($4.45 million for an individual in 2016 and $10.9 million for a married couple in 2016) an estate will generally not be taxed. Do not allow this misperception to keep you from probating a loved one’s estate.
How Involved Are Idaho Courts in the Probate Process?
Idaho has very flexible, common sense laws relating to probate. Unless an estate becomes contested, or has unusual circumstances, Idaho Courts typically allow informal probate which means that the courts are very limited with their involvement and do little to interfere with your duties as executor. At Murray & Ziel, PLLC our clients are typically granted an informal probate by the court and usually have little trouble with the courts. Although the majority of our clients are able to do informal probate, circumstances vary and some situations require a high degree of involvement by the courts.
Is Probate Expensive?
If your probate is an informal probate, Murray & Ziel, PLLC offers flat fees for this service which ensures that your costs will be contained. Most probate cases are affordable even with attorney fees, court filing fees, and fees such as publication to creditors. Contact us at Murray & Ziel, PLLC for more detailed price quotes.
How Long Does Probate Usually Take?
The length of time to complete a probate varies by case. However, Murray & Ziel, PLLC is usually able to complete all of your paperwork within several business days of receiving all of the documents and information from you. Courts vary by county in their ability to process the paperwork but we have found that our local courts are generally good about processing the paperwork within a reasonable amount of time of filing. Typically, the longest part of the procedure is publication which takes approximately one month. If you have a contested probate case the amount of time can increase substantially.
What Professionals Should I Speak with about Probate?
It is wise to speak with an attorney and with a financial professional such as a certified public accountant when beginning the probate process. Attorneys can help guide you through the process and make the process much easier for you. Financial professionals can help you with the financial questions that usually arise with probating estates.
Is it Possible to Avoid Probate?
It is possible to avoid probate. The most often used method to avoid probate is to create a trust. For some people trusts are preferable over a will and the probate process. However, every situation is different and you should consult with an attorney to determine the best estate planning tool for you.
Every situation is different. It is highly recommended that you contact an attorney to answer your questions and to review your specific situation. This blog has been provided as a public service to explain some of the basic principles of probate and to hopefully clear up some of the misperceptions about this process. This blog is not intended to act as legal advice and should not be relied upon by you in your particular situation. The attorneys at Murray & Ziel, PLLC are experiences with probate law and would be happy to give you a free consultation.