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When Is Probate Not Necessary?

Few people hear the word “probate” and think “yippee!!” In fact, the very notion of handling an estate and dealing with a probate court causes most people to shrink away in dread.

If you’ve just become the executor of an estate, you may be wondering: is probate necessary?  Or if you’re looking toward the future and hoping to make things easier for your heirs upon your death, you’re likely asking yourself: when is probate not necessary?

See: 6 Steps to Avoid Probate

Probate is not necessary when the deceased’s assets are not the kind of assets that are required to go through probate or when the value of the estate falls below a particular state’s small estate limit.

Let’s flesh that out a bit.  

First things first: the existence of a will does not negate the need for probate. Whether an estate has to go through probate is, for the most part, completely unrelated to whether there is a will.

See: How to Probate an Estate Without a Will

 

Probate assets and non-probate assets

Many common assets are considered non-probate assets, which means they don’t have to go through probate.

Some of the most common types of non-probate assets are:

  • Assets that are jointly owned with a surviving party, such as community property or jointly held property with the right of survivorship — for instance, a house with a shared mortgage
  • Assets with a designated beneficiary, such as a a life insurance policy or retirement account
  • Assets that include a payable-on-death (POD) or transfer-on-death (TOD) provision, which could be bank accounts, investment accounts, or even automobiles
  • Assets in a living trust

That could cover a lot. Individuals and couples that plan carefully could potentially eliminate the need for probate entirely by ensuring that their assets are structured in a way that avoids probate.

See: What Assets Go Through Probate?

 

Small estates that don’t require formal probate

Even if an estate does include some probate assets, it will not necessarily have to go through the full, formal probate process if the total value of those assets falls below the relevant state’s small estate threshold. When an estate qualifies for the small estate proceedings, resolution can be as easy as signing a simple affidavit (sworn statement of facts) or completing a very simplified probate process.

The threshold amounts for simplified probate can vary wildly: for instance, California’s small estate cap is $150,000 and Massachusetts’ is $25,000.

If the majority of the deceased’s assets were in beneficiary accounts and joint tenancy, but they had an individual savings account with $15,000 in it or a car in only their name. The estate would likely not have to go through probate because the total value of those assets would not surpass the small estate limits.


If you have questions about whether you need to begin the probate process, contact us today. We’ve helped hundreds of people minimize stress and reduce their costs after the death of a loved one.