Simplified or Summary Probate for Small Estates

This article explains summary probate for small estates. Every state's probate law is different, so you will need to review your state's laws or speak to a local attorney who can advise you if the decedent estate you are managing qualifies as a small estate and what process you can use for simplified probate.

What Is Simplified or Summary Probate for Small Estates?

Most states allow simplified or "summary probate" as long as the value of the estate doesn't exceed a certain total value. That limit varies by state, and what counts toward that dollar limit may also vary.

In most cases, summary probate won't require a court hearing. Instead, heirs can use an affidavit to secure the release of assets. Or they may need to petition the court for an order, but this is a one-time action. If the petition is approved, you will not need to go to court again.

Example of Summary Probate: California

Let's look at an example of how this may work. The State of California provides three options of summary probate for small estates:

• Small estate affidavit for property not exceeding $184,500 in value and not including real estate.
• Affidavit for real property for small estates with real estate valued at $61,500 or less.
• Petition to determine succession to real property to transfer both real estate and personal property not exceeding $184,500 in value.

While probate can easily take 1-2 years in California, these procedures can take 40 days to 6 months.

Second Example of Summary Probate: North Carolina

Let's take a look at North Carolina. How would the shortcut probate process work in that state? North Carolina has two processes:

• Claiming property by affidavit for personal property (less liens and encumbrances) valued at $20,000 or less ($30,000 for spouses). The person signing the affidavit and claiming the assets must provide a copy of the death certificate within 30 days to the entity in possession of the property. The deceased person's will must have been entered with the probate court and a copy of the will must accompany the affidavit.
• Simplified probate proceedings when the surviving spouse inherits everything (outside of a trust). The spouse pays a filing fee, admits the will to the probate court, and then petitions the court for the listed property.

Determining the Small Estate Limit

Let's continue with the example of California:

In order to qualify for simplified probate, the estate cannot exceed $184,500. But what counts? Only the probate estate.

What doesn't count? In California, that's a long list. It includes:

• Property whose title transfers with a Transfer on Death Deed (TODD), like motor vehicles, boats, or mobile homes
• Property owned outside of California (that has to be handled by probate in the other state)
• Property held in a trust
• Property held in joint tenancy with right of survivorship, such as a home owned jointly by married spouses. The home now transfers to the surviving spouse.
• Life insurance policies and death benefits that go directly to a named beneficiary
• Payable on death accounts that can be retirement accounts or bank accounts

Remove the value of all these properties that transfer outside the probate process, and what's left may be a savings account, furniture, and personal possession.

California may be particularly generous. Let's look at New York. You can use the simplified small estate process in New York if the estate has a gross value of $30,000 or less, excluding real estate and money that must be set aside for surviving family members.

The dollar limit in South Carolina is $25,000, less liens and encumbrances; in New Mexico, it's $50,000 or less and the value of a home is $500,000 or less.

Determining Property Value

How will you determine the value of the property to see if it exceeds the estate limit? You can try:

• Review your state's laws about what is included in a small estate
• Create a list of the decedent's property and assets
• Remove from that list any assets that pass to the heirs and beneficiaries by will and by TODD or POD or payable directly to beneficiaries
• Determine the value of remaining assets in their current condition
• Total up the value of the estate assets

Getting Started: The Summary Probate Process

Although states may have different requirements for the summary probate process, there are common steps that most states require.

The summary probate process starts when the executor of the will (or a surviving family member if there is no will) files a petition for summary probate. This must be done within a certain time after the decedent's death.

The petition should indicate the amount of the estate and a statement on how it meets the limit to qualify for summary probate under state law. If there's a will related to the estate, the petition should also show that the will is valid. You will need to submit supporting documents with the petition, including a copy of the death certificate, a copy of the will, a list of heirs, and estate assets.

After the petition for summary probate is submitted, the summary probate process goes into a waiting period, which gives creditors an opportunity to file a claim against the petitioner. This period for summary probate usually lasts a month or two, which is much shorter than the regular probate.

Then, the estate must pay any outstanding taxes and debts. After that, the assets will be distributed to the appropriate heirs. Once final asset distributions are made, the estate is closed.

Uniform Probate Code on Simplified Probate

Some states have adopted the Uniform Probate Code (UPC) provisions for a simplified probate process. Under the UPC, there are two different methods for simplified probate: (1) affidavit to collect the property and (2) summary administration.

In the affidavit procedure, the beneficiaries can use a simple affidavit to claim the assets. All beneficiaries must sign the affidavit under oath. There must be no legal disputes regarding the collection of the property. Otherwise, the probate court will need to hold a hearing to resolve the disputes.

Summary administration refers to the procedure for small estates. If the estate is within that limit, the executor may distribute the assets to the entitled beneficiaries. (If there's no will, the state intestate succession law will determine what types of assets are transferrable to the heirs.)

Need Legal Advice on Probate for a Small Estate?

Be aware that other states' laws may not be the same as the law in your state. Research the small estate administration process that is specific to your state. Or contact a local probate lawyer to ask for legal advice. You can hire an attorney simply for a consultation or for help with the process.