Probate seems to be a scary word to many people. It brings up images of the Charles Dickens book "Bleak House" where lawyers and the courts tied up distribution to the heirs (persons who inherit the estate) for decades until finally everything was gone.

Probate is a court process to transfer title (change the legal ownership) and assets from the decedent (the person who died) to the heirs. There has to be some mechanism to distribute assets, clear title, handle debts between the person who died and the heirs.

First of all, there are simplified procedures where the estate is small in most states. What is small depends upon the state. Two examples are: In California, the lower limit is $100,000 and in Nevada it is $20,000. In these cases transfer of assets is very quick and inexpensive.

All wills must go through probate. All persons dying without a will go through probate (property is distributed according to certain state laws called Laws of Intestate Succession.

The purpose of a probate is to have the court supervise what is happening with the decedent’s assets, and there are a number of safeguards which may not exist in other methods of transfers. You must file the original will with the court, and everyone mentioned in the will has to be notified that the original will is open for review. A Petition is filed to determine who will be the Executor. An Executor is a person appointed by a testator (the one whose will it is) to carry out the directions and requests in his will and to dispose of the property according to his testamentary provisions after his decease. An Administrator is appointed by the Court if there is no will.

Time is allowed for possible contests. (o dispute a case). A bond (a probate bond is a guarantee put up by a bonding company that the Executor will not steal the money from the estate.) may be required. An inventory is filed listing all of the assets (something capable of being owned) and their value. The value may require an appraiser to be appointed by the court. For example, in the case of real property. (real estate) bequeathed in a will may have a high enough value to necessitate an appraiser. An accounting must be filed. Debts must be paid.

The court must review and approve the accounting. A final decree is issued transferring title to the heirs. And finally attorneys and executors are paid..

The purpose of the court proceeding is to protect the heirs, approve the actions of the Executor, be sure creditor claims are wiped out, transfer title and generally to make certain that everything involving the estate is done correctly and that there will be no problems in the future. Court supervision then is often considered an advantage over other forms of transfers to the heirs.

Probates can also involve contests among competing wills, interpretations, sales of property and all manner of litigation that may arise. These types of situations might occur whether or not there is a will or a living trust or other forms of transfers.

It is often suggested that lawyers make a great deal of money in probates. As an example, the fees for lawyers in a California Probate are as follows:

• $3,150 up to $100,000 (the estate worth)
• 2% of next 900,000
• 1% of over $1,000,000

The statutory fees on an estate of $250,000 would be $6,150. Many lawyers will not accept probates below a certain amounts, because the statutory fees are considered too low. These are referred to as statutory fees. The purpose is to prevent lawyers from charging too much. Fees are based upon the Gross Amount of the estate. Thus, if you had a house worth $500,000 with a $400,00 loan against it, the fees would be the same as if there were no loan at all.

There are also "extra-ordinary" fees which the lawyer may charge usually at his standard hourly rate, with court approval. These fees are for unusual types of work that are not inherent in all probates, such as the sale of real estate or litigation. Because of the requirement of court approval, the lawyer cannot charge an excessive amount.

The fees for an executor are the same as for a lawyer. However, very often the executor may not charge fees because he/she is also an heir or a family member.