Leaving a will behind when you die is the responsible thing to do. But leaving a will, doesn’t always mean that there’s no need for probate. An estate may undergo formal probate for many reasons including when a will is contested, unclear, or invalid, or when the assets are held only in the deceased’s name. And when there’s no will, probate is often required to oversee the distribution of the deceased’s property.
As a general rule, you’ll want to avoid probate if possible. Unfortunately, there are situations where you don’t have a choice. Let’s explore those situations that determine when you have to go through probate.
When There’s A Will
Determining if a will needs to go through probate depends on the laws of your state and the property you hold at death. Some states, such as Washington, do not require probate to be filed. Other states base the need for probate on the value of the estate. Common situation when you have to go through probate with a will include:
Will Contest.
Disputes can arise because family members are unhappy with the deceased’s estate plan. Death can cause old family tensions to resurface causing disputes over insignificant family property. A beneficiary may contest the validity of a will’s construction. If someone who could take under the will protests the division of property, you must probate the will. All challenges are handled in probate court.
Value of the Estate.
Smaller is better when it comes to probate. It’s common practice to allow estates falling below a predetermined value to avoid probate.
Assets Held Only in Deceased’s Name.
Probate is not just about distributing property. It also initiates the legal transfer of title to that property. If a person dies and owns real estate, regardless of value, either in his/her name alone or as a “tenant in common” with another, a probate proceeding is typically required to transfer the property. However, many states offer a quicker, less expensive probate-alternatives for transferring title to cars.
When There’s No Will
When a person dies without a will, they are said to have died “intestate”. The laws of the state where you reside will determine how your property is distributed upon your death. However, probate administration when there’s no will is similar to when there is one. When you die, your property is classified as either probate property or non-probate property.
Determining the Estate’s Heirs.
If no Will exists, the property is divided among the person’s heirs. In California, if the person has a spouse and or children, the property first goes to them. If there is no spouse or children, the property goes to the person’s next nearest relatives. The laws of intestate succession are very state specific.
Transfer of Assets.
When there is no will, probate is frequently required to determine the deceased owner’s probate assets, assess their value and distribute them to creditors and heirs. It’s not uncommon for property transferred under intestacy to be counter to what the deceased would have chosen if living. Probate transfer title to the heirs with the closest family relationship to the deceased. Special provisions, such as the small estate exemption, also apply to an estate without will.
Common Assets That Go Through Probate
Basically, probate is necessary only for property that was:
- owned solely in the name of the deceased person—for example, real estate or a car titled in that person’s name alone, or
- a share of property owned as “tenants in common”—for example, the deceased person’s interest in a warehouse owned with his brother as an investment.
This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.
Assets That Don’t Need to Go Through Probate
Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary.
Here are kinds of assets that don’t need to go through probate:
- Retirement accounts—IRAs or 401(k)s, for example—for which a beneficiary was named
- Life insurance proceeds (unless the estate is named as beneficiary, which is rare)
- Property held in a living trust
- Funds in a payable-on-death (POD) bank account
- Securities registered in transfer-on-death (TOD) form
- U.S. savings bonds registered in payable-on-death form
- Co-owned U.S. savings bonds
- Real estate subject to a valid transfer-on-death deed (allowed only in some states)
- Pension plan distributions
- Wages, salary, or commissions (up to a certain amount) due the deceased person.
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FAQS
Do you always need to go through probate?
Probate. If you are named in someone’s will as an executor, you may have to apply for probate. This is a legal document which gives you the authority to share out the estate of the person who has died according to the instructions in the will.
How long does probate takes if there is a Will
The Probate process takes around twelve months to complete and with really complicated Estates, it could take longer.
Is there a time limit on applying for probate?
Though there is no time limit on the probate application itself, there are aspects of the process which do have time scales.
