Things you don’t know about Probate

We hear it all the time:

“Probate can take years.”  – –  “In Probate the State takes your money!”  – – “Probate costs so much, there won’t be anything left!”

People have lots of concerns about the probate process.  That leads them to think that Probate is this scary thing that must be avoided at all costs. In most cases, the scary stories are just wrong.  Certainly, if your estate can be managed without Court assistance, that is often a good thing.  But to know whether that is true in your case, we have to start by knowing what probate is.

Why do we have probate?

Simply said, after you have died, you can no longer transfer your property to anyone else.  If you have not made other arrangements, there is no living person with the authority to manage your property.  To respond to this problem, the State will exercise sovereign authority to transfer your property to those who deserve it.  Since the State is responsible to all of it’s citizens, not just your heirs, there is a process to make sure your bills get paid.  Also, since people sometimes behave badly, that process makes sure that everyone involved is treated fairly.  Probate is the name of that process.

So, the State handles it?

Not really.  Probate is an exercise of the state’s authority, and we often think of that authority being carried out by the Governor or the Courts.  In probate that authority is delegated to the “executor” – known in Oregon and in many states as the “Personal Representative” or “P.R.” for short.  There are a number of people who the Court could appoint to be P.R.  In most cases, the Court will appoint the person nominated by the Decedent’s Will.  After appointment, the P.R has the authority to carry out the probate process.

The Probate Process.

The probate process is simple.  At least in concept.  Once a Court has appointed the P.R., here are the basic steps:

  • Gather together all of the Decedent’s assets,
  • Manage the property as necessary,
  • Identify the Decedent’s creditors and pay the bills,
  • Distribute the estate.

Obviously, that is only the briefest outline.  There are parts of the process that are designed to give notice to those interested, ensure that creditors are paid, and give the interested parties an opportunity to check the the P.R.’s work before closing.  The more detailed steps are all things that your lawyer will help you with.

How long will it take?

After appointment and the giving of notice, Oregon law gives people with an interest in the estate four months to make claims or otherwise assert their rights in the estate.  After that four month period, if all the work has been done, the accounting can be done and the estate closed.  As a practical matter, it is difficult to complete a probate in less than about six months.  It may take longer depending on the factors in a particular case.

Alternatives to Probate

There are a number of things that may avoid probate.  There is a “Small Estate Affidavit” available in some cases.  It is also possible to transfer property by way of Trusts, Transfer on Death Accounts, Joint Property, and Transfer on Death Deed.  Except for the Small Estate Affidavit, all of those options require some advance planning.

As always, IANYL and TINLA.  But I would be glad to meet with you to discuss your estate planning objectives, or to assist you with managing the estate of your loved ones who have passed.  Please don’t hesitate to contact me to see if I can help.