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Estate Planning | Probate

How Do You Know if Probate is Necessary

7 min read
Blair Matyszczyk, Attorney

by Blair Matyszczyk, Attorney

Probate is a term that can cause unnecessary confusion and stress in a time of mourning. If you have lost a loved one, you may be wondering whether you need to go to court to sort out your loved one’s affairs. Whether you are a surviving spouse, adult child, or another person named in a will, probate may be just around the corner.

Whether you will need probate will depend on (1) whether a deceased person left a last will and testament documenting his or her wishes, (2) whether a deceased person left any assets or property in a trust or another account to be payable or transferable upon death, and (3) whether multiple family members are involved who may fight over interpretation of a will. 

We can put you in touch today with a local probate attorney to discuss your situation.

Generally, if a person passes away without a will, probate will be necessary to distribute property in accordance with state laws. When no will exists, state law will decide how property is divided and how a deceased person’s debt will be paid, among other unresolved financial matters. Probate is also necessary to validate a will, but validation may not be needed or ever come up.

Probate does not need to be confusing, and with the help of a lawyer, you may be able to handle a lot of work on your own to determine whether probate is necessary, and if so, what steps you need to take to complete the process. Unbundled Legal Help works with lawyers who provide individuals with affordable service options to meet your legal needs. We understand that legal fees can quickly add up and become unmanageable. An Unbundled probate lawyer can work with you to formulate a plan to limit time and expenses.

When Probate Is Necessary

Probate is necessary when a will needs to be validated by a court. A will that identifies how property is to be distributed must be reviewed by a judge to ensure the will is valid under the applicable state’s laws. Some heirs identified in a will may wish to contest the validity of the will in court. Probate is also necessary when a deceased person’s assets need to be divided, and no will exists.

A Person Wishes To Contest the Validity of a Will

A common reason an heir may allege a will is invalid is when the person writing and signing the will lacked the mental capacity to make his or her own decisions. Most wills are deemed valid if they comply with state law and are written when a person is mentally competent to sign and act on his or her own behalf. Having a will reviewed by a lawyer is a good idea and can limit the reasons a person chooses to contest a loved one’s will.

A Person Passes Away without a Will

Probate involves not only validating a will or reviewing petitions to contest the validity of a will. It’s also necessary when there is no will that identifies a deceased person’s wishes. The lack of a will means that a person does not have a chance to describe how he or she wants the property to be divided upon passing away. 

Most state laws identify surviving spouses as the administrator of a deceased person’s estate. State laws will further dictate the line of succession of who is the beneficiary to any property left by a deceased individual. 

Close family members, such as surviving spouses and children, are the first in line to receive distributions from a lost loved one’s estate. Without probate, property may be wrongfully taken or occupied by someone who does not have the legal authority to control such property.

Property Subject to Probate

Not all property must go through probate. Generally, property that is only in the name of a deceased person must go through probate. Such property may include, but is not limited to, the following:

  • Real estate
  • Bank accounts
  • Titled property (vehicles, boats, and other titled assets)
  • Personal possessions, such as jewelry, furniture, artwork, a wine collection, and any other household items of value (many of these items are sold at estate sales.)

Pretty much any property that no other person can claim ownership to aside from a deceased person must go through probate, with the exception of the small estate, which will be discussed below.

When Probate Is NOT Necessary

Probate can be avoided in many circumstances with solid estate planning. At Unbundled Legal Help, we assist individuals in carrying out estate planning goals with the guidance of a lawyer. Many clients need minimal assistance from a lawyer and are often able to handle most of the work necessary to create an estate plan.

Estate Planning Tools Created during Your Life

Thinking about a will and other end-of-life documents is not pleasant. It can be uncomfortable to contemplate what will happen upon your own death. No matter how old you are, estate planning is a good way to avoid probate. 

Estate planning options that help to avoid probate include the following:

  • Holding property in joint title with another person, such as a spouse (property includes real estate, vehicles, and any other titled property)
  • Creating a trust to hold property for the benefit of others that is transferable to beneficiaries upon death (trusts can be revocable, which means they can be changed up until death)
  • Property and financial accounts that are payable or transferrable to a designated beneficiary upon death
  • Having a retirement account, such as a 401(k) or IRA that names a beneficiary
  • Having a co-owned savings bond 
  • Creating a beneficiary deed, which transfers real estate to another person upon death
  • Any other property that is either co-owned or designated as property to be transferred to a beneficiary upon death

Additional estate planning options may exist that meet your unique needs. The type of estate planning tool used to avoid probate will depend on (1) how much property and other assets are involved, (2) the value of the property and assets involved, and (3) how many people are to receive property or money upon one’s death, among other factors.

The Small Estate

You may have the option of opening what is termed a “small estate,” which can be done (in some states) by completing a small estate affidavit. The purpose of a small estate is to avoid the time and expense associated with probate. Whether you qualify to open a small estate on behalf of a deceased loved one will depend on your state’s laws. 

Generally, small estates can be opened when the following are true:

  • A deceased person did not own any real estate in his or her own name at the time of death
  • The total value of all assets subject to probate is less than a certain amount, such as $50,000 or $100,000, amounts vary by state.

Small estates allow heirs to receive distributions of property more quickly. For example, with a probate proceeding, it could be more than one year before heirs receive property distributions. With a small estate, heirs may have property distributions within a few months. However, all states are different, and you may consider consulting with an Unbundled lawyer who can provide you with additional information.

Avoid Unnecessary Legal Costs

Paying an attorney thousands of dollars to draft a will is often an unnecessary expense. With Unbundled Legal Help, you have the option to pay an attorney for only certain services that do not require full-blown legal representation. By paying as little as $500 to $1,500, you can accomplish your goals without draining your own funds or the funds of a deceased loved one’s estate.

If avoiding probate is important to you, estate planning can be a cost saver both now and in the future. With Unbundled Legal Help, a lawyer can suggest a blueprint for how to meet your legal needs, allowing you to take the driver’s seat and determine what you feel comfortable handling on your own. Estate planning tools that avoid probate can save thousands of dollars in fees such as court costs, executor/administrator fees, and any other costs that may deplete estate funds by the time property distribution happens.

Court appearances may require an attorney to ensure your legal rights are protected. Handling a complicated legal matter alone that requires interpretation of many state laws can be extremely challenging without an attorney. By speaking with an Unbundled lawyer, you can determine the best course of action based on your unique situation and goals. We can put you in touch today with an unbundled probate lawyer in your area.

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