Do all wills need to go through probate?

The death of a loved one can bring about anxieties and even more questions about how to handle that person's remaining assets. But if the decedent—the person who died—has a will, the process will be easier to manage than if there is no will available. Going through a probate court judge and its proceedings can seem daunting. However, the right information can help you make smart decisions on how and to whom to distribute the decedent's remaining assets.

Some common questions about wills and probate court are: If I have a will do I need probate? Do the same rules of probate apply to all other estate planning needs? Does a will have to be probated? What if there is no will involved? Are there any situations where a probate court proceeding is not necessary? Do you need probate if you have a will?

The death of a loved one can bring about anxieties and even more questions about how to handle that person's remaining assets. But if the decedent—the person who died—has a will, the process will be easier to manage than if there is no will available. Going through a probate court judge and its proceedings can seem daunting. However, the right information can help you make smart decisions on how and to whom to distribute the decedent's remaining assets.

Some common questions about wills and probate court are: If I have a will do I need probate? Do the same rules of probate apply to all other estate planning needs? Does a will have to be probated? What if there is no will involved? Are there any situations where a probate court proceeding is not necessary? Do you need probate if you have a will?

In order to establish whether or not all wills need to go through probate, it is important to understand whether an estate has to go through probate at all.

What is probate?

Developing a last will is part of any person or family's financial planning process in preparation for when the owner passes. Probate of a will describes the legal process of naming and distributing assets to family members or other named persons after an individual's death. The process can be time-consuming and lengthy if not given proper consideration during the writing of the will.

When is probate required, and is probate needed if there is a will?

If a will has been written, an executor or personal representative has been preassigned to the probate process by the decedent. However, an administrator can be assigned by the probate court in the event the will is not available or was never written. Part of the responsibility of the executor or the administrator is to organize all the assets owned by the decedent to ensure that there are no lingering liabilities left on their estate, along with ensuring that each beneficiary receives their due assets.

What can be named as an asset in a probate proceeding?

An asset in probate proceedings can include real estate, artwork, vehicles, bank accounts, personal property, and other investments. Do you have to probate a will when these kinds of assets are involved? It is possible for the administrative process to move forward with or without a will, but it will be more complicated.

Is it possible to avoid probate?

Do all wills go through probate? It's imperative for the heirs of an estate to know if a probate is required after a death. The more complicated the estate, the more time it will take to settle the case and distribute the assets.

There are some disadvantages to going forth with a probate. The probate process is usually more expensive without a will than with a valid will. However, expect the time and cost required to complete the probate process to be high in either scenario. For example, the Superior Court of San Diego in California states that the initial legal fees related to the filing of a probate is $435, with additional fees added on as needed. It is also important to note that since probate court proceedings are publicly recorded, not going through probate would ensure that the settlement remains private.

If you want to avoid probate court, it's important to ask if it's required after the official publishing of the death certificate of the testator, as the laws in each state are different. In some states, you will find that going through with the probate process depends upon the value of the estate. In Texas, if the value of the estate is less than $75,000, then the probate process is not necessary.

It is possible for the estate's assets to be claimed using alternative legal actions, like an affidavit, if the estate is deemed small enough to bypass the probate process. If it is considered that the decedent's debts exceed their assets, then avoiding probate may be a possibility. According to the State Bar of Wisconsin, some estates and certain types of assets are not required to go through probate. That is why checking with your state laws is important.

How to go through probate

Does a will have to go through probate, and why probate a will? Probate describes the investigation and relocation of assets like bank accounts belonging to an estate that was once owned by the decedent. Once the owner of a property dies, that person's assets are reviewed by a probate court. The court is responsible for providing a final ruling on how the assets are to be divided and distributed among the named beneficiaries. The probate process usually starts with locating the deceased person's legal will.

The probate process of a will

Is probate necessary? The person for whom the will is written is known as a testator. Once the testator dies, the executor or personal representative is in charge of launching the probate process. The executor can be a family member, or it can be another person who was appointed by the testator in the will.

Once the originator of the will has died, the executor then goes to the probate attorney or court to file the will. Each state has its own time frame in which an executor must file the will after death. It is the filing of the will that jumpstarts the beginning of the probate process. The probate process is overseen by a court in order to ensure the authenticity of the will. The court must prove that the will is a valid and true last testament of the deceased. During the court proceeding, the executor named in the will is appointed, giving them the legal power to make decisions on behalf of the decedent.

FAQs

Do all wills have to be probated?

Most wills do go through probate, but in many cases, the decedent will have provided some kind of legal documentation detailing how their assets should be distributed, making it a simplified process. However, if they have not left a will, there are other actions that can take place to ensure that all debts are paid and beneficiaries receive their assets. Small estates can sometimes avoid probate as well.

What are the duties of the executor of the estate?

In most cases, the will names a legal representative or another executor who has been approved by the court. It is the executor or personal representative who takes full responsibility for locating and supervising the management of all assets like a bank or brokerage account owned by the decedent. The executor is the one who estimates the value of the estate plan of the decedent by using the date of death value or another date dictated by the Internal Revenue Code.

The proceedings of the probate are usually administered in the city where the holder of the will lived during the time written on their death certificate—with the exception of real estate. The probate process for real estate can be held in the county or state where the real estate is located.

The executor is given the responsibility of paying taxes and/or debt owed by the deceased as mandated by their estate. Creditors have a limited time span (generally one year) from the date of death to administer a claim against the deceased person's estate for any money that is owed to them. The executor can reject the creditor's claim, and it then must be taken to a probate judge to decide whether or not the claim is justified.

It is also the responsibility of the executor to file the final personal income tax returns of the deceased. The executor should expect to take care of any pending estate taxes that come up within one year from the date of the will holder's death. Once the inventory of the estate has been accounted for, the total value of the assets has been calculated, and the debts have been paid off, it is the responsibility of the executor to seek approval from the probate court to distribute assets, or what is left of them, to the beneficiaries.

If it is determined by the court that the estate of the deceased is insolvent or that the debts exceed the assets, an administrator may choose not to initiate the probate process.

What does the probate court process look like without a will?

Once a person dies without a will, they are said to have died intestate. It is also possible for an estate to be named intestate if the court deems the will to be invalid. If the decedent's estate is considered to be intestate by a court, the probate process will include the distribution of the decedent's assets in accordance with state laws. If the decedent has no assets, a probate may not be necessary.

When does an estate go to probate?

When there is no will, the probate court will assign an administrator to manage the proceedings related to the estate of the decedent. In this case, the administrator serves in the role of the executor. It is the executor or personal representative who is responsible for taking care of all legal claims against the estate and ensuring that all debts are paid off.

It is the responsibility of the administrator to contact any and all legal heirs of the decedent. This can include the surviving spouse, children, and parents. It is the responsibility of the probate court to determine what assets should be distributed to all legal heirs and how they should be distributed. Probate laws in most states divide assets among the spouse and children.

If all assets of the decedent have been transferred to the government, it is known as an escheatment. Check with the state to find out what the timeframe is for claiming the assets of the deceased.

How does having a spouse as a joint property owner affect probate?

In reference to an intestate, it is possible for a probate court to recognize both spouses as having joint tenancy or joint property owners. It is the surviving spouse who is the first to receive any jointly owned assets related to the decedent. If the decedent is unmarried or widowed at the time of death, the assets are then distributed among the surviving children. After considering the spouse who was one of the joint tenants and the children, other relatives can be named in the court-supervised proceeding.

In most cases, close friends are not considered to be a beneficiary under state probate laws for intestate estates. However, if a surviving owner and decedent had a joint account with the right of survivorship, the joint asset would be considered as belonging to the surviving partner.

Do retirement accounts and life insurance policies need to go through probate?

Certain assets may not need to go through the probate process. The beneficiaries have already been named through a contract. You'll find this in most pension plans, life insurance policies, life insurance proceeds, 401k plans, medical savings accounts, and other retirement accounts. This also applies to assets with the right of survivorship. It is also possible to bypass probate through the use of a revocable living trust.

Can probate be expedited?

According to the American Bar Association, laws vary in many states that have an expedited, simplified process made to benefit simple or small estates. Very large estates often have a more complicated process and may require probate. It's important to remember that a well-drafted will and careful planning can help a family skip probate or eliminate some of the steps. Much of the delays are due to estate tax laws and tax filing requirements.