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Estate Planning

When Do You Need To Probate?

8 min read
Unbundled Legal Help

by Unbundled Legal Help

There are many things to take care of when a loved one dies, the largest being their estate. There are a number of factors involved in properly handling an estate and, unfortunately, not all of them are obvious from the start. One of these is whether or not your loved one’s estate needs to go into probate. Going into probate means the will is legally verified and an executor will be named. However, this doesn’t apply to everyone’s situation. When exactly do you need to probate? In most cases, it’s when there is either an issue with a will or no will at all. 

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

Does Every Will Need To Go through Probate? 

The short answer is no. Contrary to popular belief, not every will must go into probate. While this depends on your state laws, it also depends on what steps your loved one took before they passed to ensure that their estate doesn’t have to go into probate. 

If they didn’t leave a will, then an estate can also go through probate if they have a property that needs to be distributed under a state intestacy law. This means that if someone owns an account such as a retirement amount and the beneficiary they named passes away before they can collect it, the account then gets passed to the courts so they can decide who is legally entitled to the funds under state law.

Do You Have To Probate?

In general, no law states that a will has to be probated if there isn’t a desire to do so. That being said, if the deceased didn’t take the steps to ensure that their estate didn’t have to go through probate, then it’s nearly impossible for beneficiaries to claim any sort of legal ownership. 

You can avoid probate altogether through careful planning. The most popular way is through a revocable living trust. This means assets are placed in a trust and then when the time comes, the assets of the trust are given to trust beneficiaries with no need for probate because a trust document’s already in place.

Other things that operate outside of probate include life insurance, retirement accounts, and jointly owned real estate. Life insurance and retirement accounts work similarly since they both send their payments directly to the beneficiary and pass outside of probate. In the case of jointly owned real estate, if one tenant passes, then the remaining tenant gains full ownership of the property.

What Can Cause Probate?

Despite the ability to avoid probate, there are some cases in which you cannot avoid it. Here are some of the reasons why probate can happen:

There Are Problems with the Will

Having a will won’t guarantee that it can be executed properly, especially if there are errors that cause the estate to go into probate. There are a number of problems that can occur, including the will not being properly notarized, not attaching a self-proving affidavit, the deceased moving to a new state and forgetting to update their will, there are multiple wills, or the beneficiaries decide to contest the will.

There Isn’t a Will

In an instance where a will doesn’t exist, the courts have to step in and sort out the assets. This varies from state to state based on their intestate succession laws. Since there’s no will in place to name an executor, the state will make those decisions.

Not every no-will estate has to go into probate, especially small estates. If a smaller estate needs to probate, there are options for a small estate probate. This is a more cost effective and streamlined process designed to make it easier to handle smaller estates. If the estate is small enough, the probate process may be eligible to be skipped altogether.

When a Valid Will Needs It

Some wills must go through the probate process. This usually stems from the deceased having creditors and debts that need to be paid off from the estate before the beneficiaries can claim any of it. Other reasons why a will would require probate are when the deceased keeps sole ownership of their assets. Probate then steps in and helps transfer ownership to the beneficiary. 

When There Are No Beneficiaries

It may sound like something out of a movie or a TV show, but in instances where the deceased has no beneficiaries and is either single or widowed, the estate is then put into probate and the court has to track down distant relatives to name as the inheritors of the estate and assets. If no one can be found, the estate then goes to the state to have any mortgage balances and other debts against the estate paid off. While it’s possible for the homeowner to name unrelated friends and charities as beneficiaries to profits of the sale of the home, the estate would still have to go into probate in order to sell off the house and distribute any remaining assets.

Once an estate is in probate, you’ll have to stop disposing of contents in the house. This is because once it is in probate, it is illegal to get rid of any assets until you’ve been named legal executor, or someone has been appointed by the court.

What Can You Do To Avoid Probate?

Since probate can be time consuming, some families may want to avoid it as best they can. 

While it isn’t a guarantee that an estate will go into probate, there’s a number of things that can be done while your loved one is alive to ensure that their estate doesn’t go into probate.

Have a Living Trust

We touched on this previously, but it bears repeating here. A living trust not only works similarly to a will, but it can keep an estate from going into probate. Setting up the trust while you’re still alive means you can manage the trust as a trustee and decide who gets your assets after you pass on. 

You can also name your successor. Unlike being named the executor of a will, being the successor in charge of the trust gives you control of the trust immediately instead of being appointed as such by a probate court.

This also means your successor will be able to transfer ownership to your beneficiaries in a matter of weeks rather than months or even years, as can happen with probate.

While having a living trust can help avoid probate, it’s not a guarantee that you can avoid it. While it varies by state, going into probate is still a very real possibility even if you have a living trust and a successor already named. If you want to avoid probate altogether, consider speaking with a probate lawyer before setting up the trust to see what you need to do.

Your State Allows for a Beneficiary Deed

A beneficiary deed, also known as a transfer of death deed, is a deed that automatically transfers ownership of assets once the owner passes away. This way to avoid probate is the least common since not many states allow for a beneficiary deed as a way to avoid probate. These deeds tend to be limited to financial accounts, however, there are some states that allow real estate to be included as well. Once the subject of owning properties in other states comes into play, this means the estate would not only be subject to probate but possibly an ancillary probate in each state where property is owned.

Joint Tenancy

This means that when two spouses own a home together and one of them passes, ownership is immediately transferred to the other. Some states refer to this as community property, tenants by entirety, or community property with rights of survivorship. These names have different definitions from state to state so you should talk with an experienced probate lawyer or estate planner to discuss what options are available to you.

Learn More about the Probate Process with Unbundled Legal Help

An experienced probate lawyer will help guide you through the probate process. They can assist you with everything from the process of contesting the will to helping you understand estate tax and how to prepare for it. With the probate process, you can complete many steps yourself, which is where Unbundled Legal Help comes in. 

With Unbundled Legal Help, you can pay as little as $500-$1,000 for legal services you need as you go as opposed to paying a lawyer upfront for services you don’t need. 

There’s little risk involved when you go with a lawyer from Unbundled Legal Help. You get to pay only for the services you need. We can put you in contact today with a local probate attorney to discuss your situation.

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