American Estate Planning Attorney Directory

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Probate Court

• The size of the estate. Very small estates will generally qualify for simplified and expedited probate proceedings; larger estates will not.
  
  
• The state and surrogate's court involved. The rules, procedures and customs vary considerably in different courts. In some, the court clerks prepare most or all papers and the process is quick and inexpensive. In other courts, attorneys will generally prepare more extensive documentation, more people will have to receive notice and the procedures are more formal. These factors create greater time delays and costs. The philosophies of different courts' approaches to probate is part of the reason. In some courts, the presumption is that the executor can, unless indicated otherwise, be trusted to fairly deal with the process. In other jurisdictions, the view is that all persons who would inherit the decedent's assets if there were no will must be notified of the proceeding. This can create some additional paperwork and cost. However, the idea behind such notices is to protect the potential heirs of every estate.
  
  
• How well the beneficiaries get along. If everyone is amicable and agreeable, everything tends to go smoother, hence fewer time delays and less cost. If beneficiaries become suspicious, or worse, antagonistic, expect the costs and expenses to increase. In a friendly situation, beneficiaries may agree on less formal ways of dealing with things. For example, if a decedent's jewelry is to be divided among three siblings who get along, the three might sit around a table with the executor and go through the jewelry and simply agree on values and who should get what. If the three siblings do not get along, the executor is more likely to have each piece of jewelry formally appraised and to use a more formal procedure for distributing the jewelry. Prior to distribution, the executor will probably insist on all three siblings signing a written statement agreeing to the values and distribution of the jewelry. The second situation will create more cost, expense and time delays.
  
  
• Whether litigation is involved. If someone challenges the will, the court costs, legal fees and time period required to resolve the probate will increase significantly.
  
  
• If there are minor orphaned children. The court will have greater involvement to assure that a guardian is appointed and the children's financial interests are addressed. You would not want it any other way.
  
  
• Whether a federal or state estate tax return has to be filed. Although tax filings have little to do with the courts, they do affect the cost and complexity of the process. A federal estate tax return is the most complex and lengthy tax return and requires more detailed exhibits and attachments than any other return. Formal appraisals are necessary for many assets. Many complex tax elections must be considered. The will, financial statements for business interests, and appraisals for real estate properties may all have to be attached. Expenses are often estimated because they may not be known exactly when the filing occurs. Certain expenses have to be allocated between the decedent's income tax return and the estate tax return, and so forth. This process is expensive and requires some time. Also, many estate attorneys prefer to complete the final tax return near the filing deadline for the estate tax return. This is because small assets or expenses tend to be found by executors or family and any change will require a change in many of the interrelated tax schedules on the federal estate tax return. Thus, when a federal estate tax return is due, the estate is unlikely to be concluded in its entirety prior to the nine-month deadline.

Who starts probate and in which court?
Probate proceedings, whether affidavit probate, summary probate or formal probate, must be brought in the correct court. In most cases, the appropriate court is obvious: the court having responsibility for wills and probate in the county where the decedent lived. In some situations, however, the decision is not as apparent. Two issues are involved. First, you must determine the appropriate county in which the courts will have the right to handle the probate (venue). This is based on where the decedent had his or her permanent residence and ultimately intended to return (domicile). Once you have determined the county where the courts can handle the matter, you must determine the specific court within that county that handles probate matters. Most counties have many different courts. One will handle traffic tickets and other minor matters. Another may handle small claims. One will handle matters relating to wills, probate and related issues. While this court can be referred to as "surrogate's court," or simply court, it may go under a different name in the county involved. Look up the court telephone numbers in the local telephone book, or call a main telephone number for the court system. It should be relatively easy to find the appropriate court.

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AEPAD is the American Estate Planning Attorney Directory.  While the information on this site deals with legal issues, it does not constitute legal advice. If you have specific questions related to information available on this site, you are strongly encouraged to consult an attorney who can investigate the circumstances of your situation and the particulars in your state.