When is probate required?
By Mary Van Doren
Posted in: Legal
Simple answers to the complex question, When is probate required?
Many people who have been involved in inheritance of an estate, or even part of one, find estate law deeply confusing.
Whether probate is required depends on what property the person owned and how it was held, and on the law of state in which he or she died and the laws of any states where the deceased owned property.
A general answer to the question, “When is probate required?” is that probate is a process used to:
- Clarify issues in a will, including a version that is not the final version; fraudulent execution; mistakes, or a will drafted when the deceased was not of sound mind
- Resolve any challenges to the will
- Enable legal transfer of title to property, including real estate, bank and pension accounts, and personal property such as jewelry, furniture, and artwork, to a named beneficiary
- Distribute an estate when there is no will
- Resolve the issue of beneficiaries when there are none named, or when they predeceased the estate’s owner
- Transfer assets that are held solely in the deceased’s name
- Remove the deceased’s name from property title that is held in joint tenancy
- Distribute assets in payable-upon-death accounts such as life insurance or health savings accounts, if there are no named beneficiaries or the named beneficiaries are deceased
When is probate required? Streamlining the process
There are some exceptions to these requirements, with every state having different laws, and some states offer a streamlined process for “small estates.”
One of these streamlining methods still involves the probate court, but gives the court less power over the process, and does not require a probate attorney to be involved.
The other main shortcut around the probate process is claiming property with an affidavit.
If the total value of all the assets the deceased owned is less than a certain amount, the people who inherit that property -- except real estate -- may be able to skip probate entirely. The exact amount depends on state law and is very different in each state.
If the estate qualifies, an inheritor can prepare a short document stating that he or she is entitled to a certain item of property under a will or state law. This document, signed under oath, is called an affidavit. When the person or institution holding the property -- for example, a bank where the deceased person had an account -- receives the affidavit and a copy of the death certificate, it releases the money or other property.
When a customer wanted to claim a bank account owned by her late mother, who had named no beneficiary for the account, Expert Damien Bosco was able to explain the entire affidavit process for her state.
Some banks have their own affidavit forms, and if not, your local court can provide you with one. In California, for example, the beneficiary must also attach:
- A copy of the death certificate
- Proof that the person owned the property in question, such as a stock receipt or account passbook
- Proof of his or her identity
- A form detailing all real estate owned by the deceased in California, if any. This form must be signed by a probate referee.
Finally, to ensure that all parties are in agreement, all other legal heirs must sign on off on the affidavit.
Streamlining processes such as these are offered by many states because probate can be an expensive and lengthy court proceeding, usually lasting four to six months, but sometimes as long as two to three years.
When is probate required? Solving estate mysteries
Throughout the process, confusion and conflicts often arise among beneficiaries and loved ones.
For example, when one JustAnswer customer asked an Expert about a life insurance policy she’d just learned about, which she said was in her name, the Experts at first took her at her word that the policy was “in her name.”
The insurance company had told the customer that she needed to get her mother, the estate’s executor, to sign the policy over to her, which wasn’t actually legally required for a policy in her name.
However, Expert Barrister finally untangled the mystery: The life insurance policy wasn’t actually in the customer’s name so that she became the beneficiary, but was rather a policy on her life, meaning that her father would have been the beneficiary if she had passed away.
Her mother was now, by inheritance, the beneficiary of the policy, which is why the insurance company had made its requirement.
In another JustAnswer question, the customer wanted to claim some penny stocks that had grown in value to about $1,000. Because the certificate was missing, the company required the customer to submit a letter testamentary.
ScottyMacEsq, an attorney and Expert at JustAnswer, explained that letters testamentary are what a court issues to an estate’s administrator when a will has named one. For this customer, it would require filing for probate.
ScottyMacEsq was able to quote the exact state statute and requirements for the customer, and also suggested that she make sure the company would be willing to issue the certificate based on this document – noting that she could quote the state statute he had provided.
There are many financial planning strategies that allow someone to ensure that heirs can avoid probate, but these usually require the services of a qualified financial planner. And unless the estate is small, legal professionals will be required for probate.
However, if you want to know the answer to the question, “When is probate required?” in your state, this website offers a comprehensive online list.
And whatever the situation you find yourself in regarding a decedent’s estate, if you want explanations or clarifications of complex legal issues for a tiny fraction of the cost of meeting with an attorney in person.
What is your experience in dealing with probate? Please share your thoughts with us in the comments below.