Nothing makes a family madder than getting socked with high fees, red tape and long delays while trying to settle a small estate.
When someone dies owning a little property (or uncomplicated forms of property), it ought to be a simple matter to pass it on to heirs. And in some states it is. But the majority still overlay the process with so many costly complications that the family winds up sore as hornets and hating lawyers.
Two things can, and should, be done to straighten out this mess:
(1) States should broaden and improve their special procedures for handling small estates.
All states have such procedures, and they simplify things enormously. A lawyer or family member simply goes to the probate court and files an affidavit, saying that the heirs agree to handle the estate without probate. They generally have to declare that the estate owes no taxes and the debts have been paid as required by law.
If there's a will, the family relies on the personal representative named in the affidavit to distribute the property properly. If there's no will, the family believes it can agree on how the property should be divided. (Should an objection arise, they can always go back to court.) The heirs also promise to become personally liable for any debts of the estate that might turn up later.
And that's that. There are ordinarily no further court appearances. The court issues a document, ordering the bank accounts and other assets to be released to the heirs.
But there are problems with the small-estate procedures in many states. You often can't use them if the dead person owned an interest in some real estate. Notice to creditors may be required, which occasionally cause a delay in your ability to resell certain inherited property.
Many states have such a cramped definition of what constitutes a "small" estate that few families can make any use of the streamlined process. The simplest law in New Hampshire applies only to estates smaller than $500, says Eugene Scoles, professor of law at the University of Illinois, who recently made a study of the small-estate laws. It's not unusual for the ceiling to be set at $2,500 to $5,000. Small estates over that limit may be subject to all the burdens and costs of regular probate.
Four states--Florida, Nevada, Oklahoma and South Dakota--set the small-estate ceiling at $60,000, which is generous but still not enough. "The limit should be raised to at least $100,000, if the assets are simple and there are no creditors," Scoles says. "That generally covers an estate with a house, a car and a little savings. Families can handle such assets without a court looking over their shoulder."
One risk, when using small-estate procedures, is that unexpected debts might turn up, for which the heirs would become personally liable. "If the decedent had a business, the heirs normally shouldn't use this procedure, because there might be hidden business debts," Scoles says. "But in a close family, where the decedent was a wage earner or retired and the family understands his or her finances, there's very little risk."
A few states offer simplified procedures even to large estates, in certain circumstances. In California and Washington, it's possible for a surviving spouse to take over all the community property without enduring formal estate administration. In Texas and Illinois, a family can settle an estate without probate, regardless of its size.
(2) The public should pressure more state legislatures to adopt the Uniform Probate Code, which greatly simplifies procedures for all estates, large and small. The UPC has special procedures for estates of $5,000 or less which contain no real estate. But even with larger estates, the UPC's informal probate procedures allow property to be distributed quickly, efficiently and without paying heavy fees to lawyers.
Fourteen states have adopted the UPC in some form (Alabama, Arizona, Colorado, Idaho, Maine, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, Pennsylvania, Utah and Wisconsin), but the reform movement has been stalled since 1979. Lawyers and judges tend to resist simplified probate--in part because they don't understand it, in part because it reduces the influence of the court and the incomes of some lawyers.
It's going to take increased public pressure from the elderly and their families to simplify probate in the majority of states. Until the small-estate laws are broadened or UPC is passed, you'll continue to be frustrated by the costs and complications of passing money along to heirs.