If the deceased person left a last will that is recognized as valid by the probate court, then the person named in the will as the executor or personal representative typically will be appointed, barring extraneous issues such as that person’s illness or old age. If the person named in the last will is unable or unwilling to serve as Personal Representative, or if there is no will at all, then the probate court may appoint an adult family member, trusted friend, or professional third party.

Being an Personal Representative is a big responsibility. The probate code contains pages upon pages of complex legal rules and procedures that an Personal Representative must follow during the probate process. In addition, there are certain deadlines that an Personal Representative must meet in filing papers with the court and providing notice to interested parties. If an Personal Representative does not comply with any of these rules, he or she can be held personally liable for any losses to the estate.

In most cases if your loved one left a trust as the cornerstone of their estate plan, then no you do not need to go through probate. However, there is one big caveat here: The deceased must have ensured that all of his or her assets were properly titled in the name of the trust or properly named the trust as beneficiary in order to completely avoid probate. Unfortunately, not all estate planning attorneys who draft a trust for their clients ensure that assets are properly owned and beneficiaries are properly designated. Oftentimes, a trust was prepared many years ago and was never updated. Assets changed, the law changed, but the trust only got more out of date. That is why it is so very important that you carefully choose your estate planning attorney who will meet with you for regular reviews of your estate plan and your assets so that the planning you do now works as planned later.

As a general rule, assets owned solely in the name of the deceased person are subject to probate. By contrast, assets with title designated as “joint tenants with right of survivorship” are not subject to probate and pass by operation of law to the surviving joint owner. Also, assets with a “transfer on death” or “pay on death” designation, such as life insurance and retirement accounts, are not subject to probate and pass by operation of law to the designated person.

When there is no will or trust to dictate who receives what, then probate assets will be distributed according to state law. In other words, the state legislature has made their best guess as to who you would want to receive your assets. The typical hierarchy is that all probate assets go to your surviving spouse; or if you do not have a surviving spouse, then all probate assets are split equally among your children; and so on following the branches of your family tree.

Probate proceedings typically take around 6-12 months if there are no snags whatsoever. Some probate cases linger for two or more years if beneficiaries are disputing or if the deceased left property in multiple states. In terms of cost, every probate proceeding is different. Probate costs include court filing fees, attorney fees, appraisal fees, professional fees such as tax preparation, Personal Representative compensation, document certification fees, recording fees, and more. Some states allow fees to be determined as a percentage of the probate assets, and other states provide that fees are determined pursuant to a statutory schedule.