When Do You Have to Go Through Probate?

Some people develop an estate plan to avoid their estate going through the formal probate process. Many seek to bypass probate for several reasons, including the following:

  • Avoiding a public record of the distribution of assets
  • Eliminating probate costs
  • Avoiding a court-supervised process
  • Preventing the time-consuming probate process

Others are not particularly concerned about probate, or they view the legal process as helpful for ensuring the fair distribution of assets.

When the decedent has a last will and testament, the probate process does two things: (1) it establishes that the will is valid, and (2) it provides a process for closing the decedent's estate by paying bills and distributing assets to named beneficiaries. When the decedent does not leave a will, the probate process determines who will be the heirs. The probate process continues until the court closes the estate.

This article discusses the situations in which an estate must go through the probate process.

When There's a Will

You need to file your last will and testament with the probate court. Whether that initiates a probate proceeding is another matter. The need for probate depends on the size of the estate at death, state laws, and whether someone is willing to act as executor of the estate.

Generally, the probate process begins after the filing of the last will and testament to:

  • Distribute assets
  • Pay valid debts
  • Transfer relevant assets
  • Clear up any contest of the will

We explain each of these topics in more depth below.

Distribute Assets

During the probate process, the executor acts as a fiduciary. That means the executor must act in the estate's best interests. Gathering, valuing, and distributing property are essential duties.

The executor also initiates the legal transfer of title to that property. If a deceased person owns real estate, a probate proceeding is required to transfer the property. Real property must be transferred from the decedent's name to the surviving owner (if owned as a "tenant in common") or to beneficiaries.

Paying Valid Debts

The executor or heirs of an estate may question the validity of bills submitted for payment. The creditor may have submitted a request for payment after the due date or failed to provide documentation to support the claim. If there's a dispute, the probate court resolves any challenges to a creditor's claim.

Transfer of Assets

Probate is often required to determine the value of the decedent's property. The executor will assess the value of the estate assets and distribute the assets to creditors. Any remaining assets are transferred to the heirs.

Will Contests

Death can cause old family tensions to resurface. Disputes can arise when family members or anticipated heirs are unhappy with the deceased's last will and testament. A beneficiary or expected beneficiary may challenge the will in probate court.

Reasons someone might contest a will include:

  • Lack of competency when the deceased drafted the will
  • Fraud, undue influence, or coercion
  • Forgery
  • Problems with the legal document claimed to be the will — lack of witnesses, lack of notary, or other requirements under state law

When There Is No Will

When a person dies without a will, they have died "intestate." The state's probate laws where the decedent lived will determine how their property is distributed upon death.

Estate administration in instances where there is no will is similar to cases where there is a will. In cases of intestacy, the probate court judge will appoint a personal representative to complete the probate process. A personal representative has similar duties and obligations as an executor. But the personal representative has the additional step of determining who the heirs are.

Determining the Estate's Heirs

The property is divided among the person's heirs if there's no will. For example, in California, if the person has a spouse or children, the property goes to them first. If there is no spouse or children, the property goes to the person's next nearest relatives. State law determines intestate succession, which is specific to each state.

Probate transfers titles to the heirs with the closest family relationships to the deceased, not necessarily the persons the decedent would have given the property to if they had made the decision.

Small Estates

Small estates falling below a predetermined value can avoid the traditional probate process. In California, estates valued under $150,000 qualify as small estates. These small estates can go through a simplified, expedited probate process. In Oklahoma, estates valued under $20,000 do not have to go through probate.

The small estate exemption applies whether or not there is a will. Rather than going through probate, personal property is typically transferred using affidavits.

Situations When You Can Avoid Probate Court

When you die, your assets are either probate assets or non-probate assets. Effective estate planning can help your estate avoid probate. Estate planning increases the chance that a surviving spouse or other loved ones will receive their inheritance quickly. Estate planning tools you can use to ensure more of your property is "non-probate" include the following:

  • Joint tenants of real estate with the deed showing "joint tenancy with rights of survivorship"
  • In community property states, some or most property transfers to the surviving spouse
  • Transfer on death deeds for real property and vehicles
  • Designated beneficiaries on bank accounts, brokerage accounts, retirement accounts (401ks and IRA accounts), and life insurance policies, which are then payable on death (POD) or transferred on death (TOD)
  • Irrevocable trusts and revocable living trusts

Have Probate Questions? Ask a Probate Attorney

Whether you're working on your estate plan or closing out the affairs of a loved one, legal advice from an experienced local estate planning attorney or probate lawyer can help you through the process.

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