Simplified or Summary Probate for Small Estates
For large estates, the formal probate process can take years to complete. For small estates in some states, there's a simplified version of the process called simplified probate or summary probate. Most states allow this simplified probate procedure, which saves both money and time.
In some states, state law provides simplified probate (or summary probate) for small estates. Most states allow this simplified probate procedure. For large estates, the formal probate process can take years to complete. Thus, a simplified probate procedure can save your loved ones money and time.
This FindLaw article explains summary probate for small estates. Every state's probate law is different. You must review your state's laws or consult a local attorney for legal advice. An attorney can advise you if the decedent's estate that you manage qualifies as a small estate. An experienced probate attorney can also guide you through the process for a simplified probate process.
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 specified total value. That limit, and what counts toward that limit, varies by state.
Summary probate can usually be done without a court hearing or a time-consuming process. Instead, heirs can use an affidavit to get the assets released. They may need to petition the court for an order, but this is a one-time action. You will not need to go to court again if the petition is approved. A summary probate procedure eliminates full probate.
Example of Summary Probate: California
Let's look at an example of how this may work. The State of California provides three options for 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 real estate and personal property not exceeding $184,500 in value
Probate can easily take 1-2 years in California. When the size of the estate qualifies for summary probate, these small estate procedures can take only 40 days to 6 months.
Example of Summary Probate: North Carolina
Let's take a look at North Carolina. How would the small estate probate process work in the Tar Heel state? North Carolina has two processes:
- Claiming property by an affidavit process for personal property, less liens and encumbrances, valued at $20,000 or less ($30,000 for spouses): The person signing the affidavit must provide a certified copy of the death certificate within 30 days. The person claiming the assets must present the affidavit to the entity possessing 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 2023, to qualify for simplified probate, the estate cannot exceed $184,500. What counts? Only the probate estate.
What doesn't count? California law excludes a long list of assets from the value of the decedent's estate. Property that does not count towards the probate estate in California 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 the 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 with a financial institution, including retirement or bank accounts
What's left after removing assets that transfer outside the probate process may be a savings account without a payable on death order, furniture, and personal possessions.
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 $50,000 or less, excluding real estate and money that must be set aside for surviving family members.
Determining Property Value
How will you value the property to determine whether it exceeds the statutory limit for a small estate procedure? You can try the following:
- Review your state's laws to determine what's included in a small estate
- Create a list of the decedent's property and assets
- Remove from that list any expenses, such as legal and funeral expenses, and assets that pass to the heirs and beneficiaries by TODD or POD or payable directly to beneficiaries
- Determine the value of remaining assets in their current condition
- Total the value of the estate assets
Getting Started: The Summary Probate Process
Although states have different requirements for the summary probate process, there are similarities.
The summary probate process begins when the executor or personal representative of the will files a petition. A surviving family member can file the petition for summary probate if there is no will. This must occur within a certain time after the decedent's death.
The petition should indicate the amount of the estate. The petition must outline how the estate 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 documentation with the petition. These documents can include:
- A copy of the death certificate
- A copy of the will
- A list of heirs
- A list of estate assets
After submitting the petition for summary probate, the process goes into a waiting period. This period allows creditors to file a claim against the petitioner. The period for summary probate usually lasts a month or two. This is much shorter than the regular probate process.
Then, the estate must pay any outstanding taxes and debts. When the estate pays all remaining debts, heirs receive distributions. The estate is closed upon final distributions.
Uniform Probate Code on Simplified Probate
Several 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:
- Affidavit to collect the property
- 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 must hold a hearing to resolve the conflicts.
Summary administration refers to the procedure for small estates. If the estate is within that limit, the executor may distribute the assets to beneficiaries. If there's no will, intestate succession law will determine what types of assets are transferrable to the heirs.
Need Legal Advice on Probate for a Small Estate? Contact a Probate Attorney
State laws can be unique. Therefore, it's essential to research the small estate administration process specific to your state. If you still have questions, contact a local probate lawyer to ask for legal advice. Many attorneys will provide a free no-obligation consultation.
Can I Solve This on My Own or Do I Need an Attorney?
- Complex probate situations usually require a lawyer
- A lawyer will take these matters seriously and enforce protections
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations