My dad’s FL probate was relatively quick & easy. He had a will, a house, and a relatively small sum of money. I guess everything depends on personal circumstances.
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Interesting. Her father also established a “family” trust as well as individual ones for his children, omitting spouses. Even before he died, money was used to “protect” the children though he decided what they needed protection from.
Probate varies a lot by state. In CO it is known to be easy, and for my Mom’s estate (no real estate but many small-ish assets) I filed the paperwork with court house and never needed a lawyer. It did help that most accounts had assigned beneficiaries - my work was done in a few months, could have been faster if I had possessed the stamina to do more parallel tasks.
My father is in NY… probate there is notoriously difficult. I’m glad he wrote a will before he remarried. I’m also a bit relieved to not be the executor.
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And don’t forget, anyone that owns real estate (beach house, mountain cabin, snowbird preserve) in other states are also subject to those states’ probate laws, as well as the state of primary residence.
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Good point. Real property gets probated in the state it is located, unless that property is owned by a trust or LLC. Which is what many people do with their properties. A trust or an LLC can sell the property if needed and allowed; we purchased a house owned by an LLC whose owners lived out of state). But always consult an attorney licensed in the state where that property is located- don’t just trust a stranger on the internet!
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Key words here “if allowed”. The irrevocable trust set up for the family cottage in my husband’s family cannot be easily sold. All of the trustees and beneficiaries have to agree to sell. There are five trustees (my husband’s siblings), and everyone over 18 in the bloodline is a beneficiary, I think there are 9 additional beneficiaries.
Let’s just say…we are so glad we are not part of this…for a lot of reasons.
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The main problem here is the number of beneficiaries and trustees.
ETA: we once made an offer on a house that was in a trust which became irrevocable because the owner died. Six trustees who were also beneficiaries lived in 5 different states! Took them forever to even consider the offer. By the time all got a copy of the offer, it expired. 
I was glad they were so slow because a much better house came on the market!
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Having multiple Trustees is a nightmare. Most estate attorneys recommend just one decision-maker, signer.
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In our case, and in @BunsenBurner case, the trust was a property that the elder wanted to leave to a whole family.
When this was presented to us, we saw LOT of flaws in the plan.
I would suggest anyone wanting to leave a cottage read the book “Saving the Family Cottage”. It’s an excellent book. And good food for thought when you speak to the attorney about your bequests.
Even IF I had had this book before my MIL set up her trust…for her kids…she wouldn’t have read it or cared. And frankly, I think the trust attorney she used drew up a very poor document (we had it reviewed by our lawyer here before we declined…and we are so glad we declined…and MIL removed us).
I guess this is part of setting up with the elders, but I don’t want to dwell on this one piece.
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But you do raise a great point. Frequently, elders can have an emotional attachment to assets and expect that the heirs will have the same attachment. “What do you mean you aren’t interested in our little beach house in Nags Head?” Yeah, I get that you just got a great job in Seattle, and it will take 6-8 hours to get there…"
Or, the elders use the power of the Trust to keep control from the beyond after they are gone.
Was recently in a thread on BH where the poster had put assembled some sophistical real estate deals — all of which were illiquid – and very proud of his work. But then got miffed, when the kids wouldn’t show up for a meeting that he scheduled to learn how excited they should be to learn that they will be landlords when he passes.
Ugh, not everyone wants to be a landlord. Not everyone is capable.
The consensus BH recommendation was to leave directions for the Trustee to sell the assets, but the poster woudl have none of it: ‘are they that ungrateful for what I’ve built for them?’ (Both emotional attachment and controlling.)
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Per Stirpes was mentioned recently in one of the threads.
“ Per stirpes stipulates that, should a beneficiary die before the testator, the beneficiary’s share of the inheritance goes to their heirs. Per capita takes the opposite approach: The inheritance is divided equally among the testator’s beneficiaries.”
It’s a way to try to take into account the fact that the will writer might outlive beneficiaries. But sounds like it can be messy, especially if lawyers misuse terms (yikes, that should not happen) - For example, some lawyers have allowed their clients to use the phrase “to my children, per stirpes.” While this may sound straightforward, it is technically incorrect. Instead, the will should read "to my descendants, per stirpes."
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This.
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Things were simple when my dad died; he had Alzheimers and we had everything changed to my mom’s name before he passed. My mom has a will and everything is set to pay on death except the house because my state doesn’t have TOD for real estate. I am the executor (the will divides in 4 parts: 3 children and and the last part divided equally among the grandchildren). I know I have to go through probate in order to sell the house, but that means (at least) a year of paying the HOA, utilities, and upkeep. Can I hold the payout to everyone until the house is sold in order to pay the bills or am I going to have to collect the payment from 2 siblings and 9 grandchildren each month, or estimate the cost and withhold that amount from the money they are getting?
It’s not a large amount (some investments, household items, 1 car) and we all get along really well so there should be no drama. Any insight?
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My mother’s house was the only thing that had to pass through probate. Similar set-up to your scenario above.
Once I had exhausted the funds in the account on which I was joint or co-owner (I forget the exact structure), I asked each of my siblings to send me a check to pay ongoing house expenses. I think we ponied up a total of $20,000 collectively. We closed on the house four months after my mother died, and this included probate in New York State. This was five years ago, and I’ve heard that probate is taking longer due to court delays these days but the entire process was extremely easy.
I would not have been able to withhold funds from her brokerage or IRA accounts because they were set up as TOD.
Is probate always difficult in New York? While my mother’s health was failing, I contacted a lawyer to ask about having to trust set up, but he told me that the cost of establishing the trust would be comparable to the cost of probate, so we opted not to create a trust.
I will have to pull the file to confirm the exact fees, but I don’t think we spent more than $2000-$2500 in legal and probate fees combined. We closed on the house four months after my mother passed.
There were additional legal fees to handle the closing on the sale of the house, and to prepare the final statement to be sent to the accountant, but I was pleasantly surprised at the total out of pocket cost.
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The stories I’ve heard say “up to 2 years” for probate in NY. This article (randomly found via google, matches other similar) says usually 9 to 18 months.How Long Does Probate Take in New York? | Attorney.
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Maybe we got lucky! This was five years ago, and perhaps like so many functions the probate courts have not returned to timely functioning since Covid?
The house was the only asset we had to dispose of. While my mother did not identify beneficiaries for items in her house, we children decided among ourselves by taking turns choosing what we wanted.
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I’m not a lawyer. However my understanding is there is nothing for you to withhold. The whole point of TOD is that it passes outside of probate and you as executor have no access to any of the payouts. The heirs simply contact the bank or brokerage directly, say X has passed away and I’m a TOD beneficiary, supply a death certificate, and they get the portion left to them.
If you want to avoid probate and sell the house in less than a year it takes in your state then a revocable trust seems like it would do the job. Mom sets up a revocable trust and transfers the house to the trust, of which she is the initial trustee. Nothing changes until she passes, at which point the trust specifies a successor trustee (eg. you). As successor trustee you sell the property and distribute the proceeds. If she also includes a bank or brokerage account in the trust then you will have money to pay the costs of the house until it is sold.
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Thanks CT1417 and mikemac for the advice!
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A side note for those that are using TOD or insurance policies to pass money to beneficiaries. Be sure they know of your plans because many companies require them to submit a claim; they won’t be notified of your gift after your passing.
Vanguard says “We don’t contact beneficiaries after the deaths of Vanguard account owners.” Schwab in its form for designating beneficiaries says “It is the responsibility of each beneficiary designated under the Plan to notify Schwab of the death of the account owner.” I think this is true of many brokerages and banks.
“Life insurance policies often go unclaimed because beneficiaries don’t notify the insurance company when the policyholder dies. Most insurance companies don’t even know the insured has died and they are also not required to inform beneficiaries who are listed on a policy.” From How to find out if someone has life insurance | Insure.com
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