When does a will have to go through probate?
UPDATED: December 16, 2019
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When a person passes away and leaves behind a will, there are certain set procedures and formalities that must be followed in order to legally account for and distribute the estate among beneficiaries. The filing of the will in court, referred to as admitting the will into probate, is a necessary step in almost every case.
Although exceptions can be made for small estates, even the claimants of those estates may choose to open a probate case in order to give notice, make claims, or address any debts or possible credit claims that might still exist.
Probate Court and Wills
Probate court serves a variety of purposes. In general, it’s designed to oversee the distribution of the estate to eligible beneficiaries, prove the validity of the will, settle all open debts and accounts (including taxes), and verify all final wishes are carried out. Probate court takes action to settle the estate and give the will legal effect. While the deceased often names a specific person or persons, referred to as a trustee or executor, to be in charge of these affairs, probate courts officially verify that the steps taken are legal and orderly.
It is important to note that not all property in an estate will necessarily go through probate court. What is required to be probated and what isn’t depends on what state you’re in because each state has its own probate regulations. For example, in some states, probate requirements are based on the overall value of the estate.
Virtually all states now have some form of small estate administration, allowing for avoiding probate or allowing a minimum cost to probate. In others, the primary issue is what property requires probate. Some property such as life insurance, some vehicles, or some jointly-held bank or mutual fund accounts don’t always need to be put into probate. These non-probate assets are usually distributed to beneficiaries by the asset trustee outside of the probate court system.
Should You Probate a Will?
If the estate of your loved one doesn’t meet your state’s requirements for probate because it's valued below minimum value or contains non-probate types of property, you’re not required to file it in court. But you still have the option to consider. Probate court comes with its share of fees, which differ by state, including appraisal costs, filing fees, and potential litigation costs should the will be contested.
Filing for probate also requires detailed paperwork and many court appearances, lengthening the time it takes to settle the affairs and release assets. The benefit to probate court is that the process provides verification, both publicly and personally, of everything being done correctly.
If your loved one had significant debts, or if you’re worried about creditors making claims on the estate, or if you feel there may be issues among beneficiaries arguing for any property that did exist, you may have compelling reasons for filing the will in probate court. The probate court process itself will assist in ensuring things are done as they should be, and may even serve to intercede in settling disputes among beneficiaries, as well as order final settlement with creditor claims.
Dealing with the aftermath of death can be difficult, particularly when there are complications regarding the distribution of assets. The important goal is to make sure assets are handled in accordance with the wishes of the deceased and to the maximum benefit of the survivors.
In simple situations, following the wishes of the deceased can be done by the appointed trustee, lawyers, or financial advisers who are involved with the will and the estate. In other cases, you may feel you need some extra help and verification of your actions and decisions. Depending on your individual circumstances, filing the will in probate court may be the best way to gain this reassurance, even if you are not legally required to do so. Consult an experienced estate planning attorney to understand how probate court will help you manage a will before making a decision.