1.     Probate is Expensive.  Probate costs are expensive.  The AARP (American Association of Retired Persons) nationally surveyed and determined that probate costs vary between 2% – 10% of estates.  The Schwab web site estimates probate costs in Mississippi at 3%.  Minimum fees for probate start at $3,500 for some law firms.  We have found that larger estates can be probated for less in percentage terms but more in Dollars.

2.     Little Planning Saves a Lot.  If you have burial coverage, you have recognized the need for planning in advance to reduce expenses.  Planning to avoid probate is similar.  A little planning can save a great deal in probate costs.

3.     Probate Costs are Avoidable.  In almost every probate matter we have handled, we have noticed that a large portion of the costs were unnecessary if proper planning has been done.

4.     What is Probate?  Probate is the process of giving life to a will.  Probate also includes the process of passing assets without a will.

5.     Will.  The Will is a legal declaration instructing how assets are to be distributed at death.  Assets passing through a Will must pass through the probate process.  The Will serves the following basic functions:

a.      to transfer title to property of a deceased person to specified persons;

b.     to pay the debts of the decedent;

c.     to appoint the Executor: the person who is responsible for probate;

d.     to appoint the Guardian for a minor child; 

e.      to appoint the Trustee who will manage and distribute funds for the beneficiaries of any Trust; and

f.       to create trusts for persons needing management of assets.

2.     The process of using a Will is probate.  The following are the general steps of probate:

a.      execution of Will by Testator (the one who makes the Will);

b.     death of the Testator;

c.     drafting of Probate documents by an Attorney;

d.     presentment of Petition to Probate to Judge;

e.      execution of Order by Judge;

f.       issuance of Letters Testamentary by the Clerk (authorizes the Executor to take action);

g.     publish Notice to Creditors to present claims;

h.     Satisfaction of Claims; and

i.        Distribution of Assets of Estate to Beneficiaries.

3.     Time.  The time frame is approximately four (4) months to a year, depending on the situation. 

4.     Real Estate.  Real estate must be probated in the State in which it is situated.  The Will is not effective until death and thus cannot address incapacity issues: which arise during life.

5.     Title Passing Automatically.  The Will does not affect property passing: by operation of law, such as a deed with title going to the survivor; by beneficiary designation, such as a beneficiary under a life insurance policy; or via a Revocable Trust.  These assets pass outside of probate.