Probate Lawyer

When Probating a Will Is NecessaryIf you are planning out your estate, one of the first things you might ask a probate lawyer is whether or not the probate process is necessary. Like so many other questions related to estate planning, there is no one size fits all answer as it will depend on the state you reside in and other factors.

When is probating a will necessary?
The following is general information regarding an estate and whether it will need to be probated. Keep in mind that laws and rules change on a periodic basis. You should consult a probate lawyer for the most up to date advice and information.

Were the assets solely owned? 
If the decedent (the person who created the will) owned property (i.e. real estate, vehicles, belongings, etc) solely in their name and without any joint owners, the property will likely need to go through the probate process in order for it to be transferred into the name(s) of a beneficiary. Some states exempt vehicles from this; talk to your probate lawyer for more information.

For example, a vehicle can be transferred to an heir without going through probate. Some states offer an expedited process for small estates; typically those that are valued at $50,000 or less.

Were the assets owned with others?
If the decedent owned property in their name as a “tenant in common” with another person, the decedent’s portion will have to go through probate. The expedited process, as mentioned above, might be available for tenant in common assets as long as the value is under the “small estate” value set forth by the state. If the tenant in common asset was included in a trust, probate will likely be unnecessary.

What if the heirs are deceased or there are a lack of designated heirs?
If the decedent had a life insurance policy, bank account, medical savings account, or other type of payable-on-death account, and any named heirs have died before the decedent, or there are no named heirs, the policies or accounts will likely be required to go through probate. Once this has occurred, these special assets can be transferred into the names of heirs that have been listed separately in the will or estate. If there are no named heirs anywhere else, the state may look towards other living family members.

What if there is no will?
When there is no valid will, and any of the above situations apply, the assets will typically need to go through the probate process. The state will review the decedent’s heirs at law and transfer these assets into their names as legally applicable.

What if there is a will?
If a valid will existed and any of the above situations apply, the probate process is very likely.

How can you avoid the probate process?
If you are adamant about your heirs not having to go through the probate process, you may want to consider a revocable or irrevocable trust. There are many benefits to these estate planning tools; however, they are not for everyone.