Probate estates cost more than non-probate estates because they drive probate attorneys (i.e. estate planning attorneys) bonkers. They’re a pain with many more legal hoops to jump through than settling an estate wherein probate is not required (such as in the case of a fully funded revocable living trust.)
First, probate rules are different for each county. There are 24 counties in Maryland, including Baltimore City; therefore, there are 24 different sets of probate rules. There is a lot to keep track of; and, often, the procedures can only be learned by trial and error.
Second, probate requires original signatures, which excludes faxes and emails. Although, electronic filing sometimes avoids the original signature requirement, it is not available in all counties; and, even if it is, sometimes original documents such as the will (with original signature) must still be mailed in.
Third, some probate courts require bonds; whereas, others do not. This means that sometimes the personal representative (i.e. executor) must pay a fee to guarantee that he or she will not steal from the estate and other times, not. Often, the bond issue is determined by whether the personal representative lives in that state of Maryland, or not.
Fourth, all probate estates are under the jurisdiction of probate courts so the personal representative and the probate attorney must make court appearances, report to the court, and do whatever the court orders. Like all of these factors, this costs time and money.
Fifth, probate estates are often more disorganized than non-probate estates. For example, if a revocable living trust is fully funded, then that decedent likely got good legal advice. There is likely a list of assets and other important papers stored with the estate planning documents. This avoids the time consuming digging through piles of papers to figure out what the decedent owned by the personal representative and legal staff.
If you want to avoid probate and save legal and personal representative fees, consult with a qualified estate planning attorney.
Stephen A. Mendel, Estate Planning Attorney
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