Does a Will Always Have To Be Probated?

It’s possible to avoid probate in some circumstances

A couple talks with an estate planner.
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If you die with a will, your assets are typically distributed under the supervision of a probate court. Probate is the legal process of settling a deceased person’s estate, including authenticating the person’s will, locating assets, paying creditors, and distributing assets according to the person’s wishes.

But there are some circumstances when an estate doesn’t need to be probated. To help you navigate the process, we’ll explain how probate works, as well as the situations when an estate doesn’t require probate. We’ll also cover some assets that pass outside of probate.

Key Takeaways

  • Probate is the court-supervised process of settling someone’s estate. It includes paying creditors and distributing assets to beneficiaries.
  • Assets that are jointly owned, have a designated beneficiary, or are held in a trust will avoid probate.
  • Property that is distributed through a will must be probated. If a person dies without a will, their assets will also be distributed through probate.
  • Many states offer simplified probate procedures when the value of probated assets is relatively low.

What Does It Mean to Probate a Will?

Probate is the court-administered process of settling a person’s estate, accounting for assets, paying taxes and creditors, and distributing property to beneficiaries. If a last will and testament exists, part of the process includes determining if the will is valid. The rules for probate vary by state. When a person dies with no will, they are said to have died intestate, and the probate court distributes their assets according to state laws.

Some property avoids probate completely and goes directly to beneficiaries; examples include retirement accounts and life insurance proceeds. However, property included in a will must go through the court-supervised probate process.

Typical probate costs are about 2% to 5% of the probated assets’ value. The length of probate varies by state, with many states imposing a minimum amount of time before an estate can be probated. In some states, it’s as little as four months, while in others, it’s up to two years.

“A general estimation for a probate case is approximately one year,” said Julie A. Paquette, an estate planning and probate attorney in Detroit, Michigan, in an email to The Balance. “Most states require some type of notice period to give creditors a chance to make claims, and that generally runs for several months, during which the probate estate must remain open.”

Can You Settle an Estate Without Probate?

Yes, it’s possible to settle an estate without probate. Some assets are typically distributed outside of probate court, so property will go directly to your beneficiaries. Many states also offer a simplified probate process when the value of the person’s assets is relatively low. Each state defines this value differently, so it’s important to seek guidance specific to the state laws that apply to the estate in question.

When Can You Avoid Probate?

A common estate-planning strategy is to avoid probate as much as possible, often through living trusts, jointly owned property, and beneficiary designations.

“For someone renting their home with a few financial accounts, avoiding probate can be as easy as setting up beneficiary designations on those accounts,” said Jack Hales, an estate planning and probate attorney in Dallas, Texas, in an email to The Balance. “For others, avoiding probate can involve a good bit of homework and maintenance.”

When You Have Jointly Held Assets

Assets that are held in joint tenancy with rights of survivorship (JWTROS) are owned by two or more people, each of whom has an undivided interest. When one owner dies, their interest goes directly to the other owner(s), avoiding probate. Assets that can be held in joint tenancy include:

  • Real estate
  • Bank accounts
  • Vehicles
  • Stocks and bonds

Property that isn’t jointly held will still be probated.

When You Have Named Beneficiaries

Some assets are transferred through beneficiary designation and therefore bypass probate. Examples include:

As long as there’s a living beneficiary, these assets go directly to them. If the beneficiary designation conflicts with instructions in the decedent’s will, the person listed as the beneficiary will typically receive the asset. Assets that aren’t transferred by beneficiary designation must be distributed through probate.

When You Have a Revocable Living Trust

A revocable living trust is a trust you create to hold and manage your property. Because it’s revocable, you can change its terms at any time. Many people who establish a revocable living trust manage the trust’s assets themselves. Upon their death, it’s up to the trustee rather than probate court to distribute the trust’s assets.

Again, only assets included in the revocable living trust will avoid probate. Any property not covered will need to go through probate. Many people use a pour-over will to cover assets that aren’t included in the trust.

Probate and Small Estates

Many states have simplified procedures for estates where the value of the probated assets fall below a certain threshold, such as $25,000 or $50,000.

According to Hales, the probate process varies based on the value and type of asset. “For instance, where only real estate needs to be transferred to heirs, most states will provide a procedure where affidavits of heirship can be filed in deed records, and that is enough to get everything to the right people,” Hales said.

“Most states also have a Small Estate Affidavit where assets under a set dollar threshold can be listed on an affidavit and sworn to by the heirs and disinterested persons,” Hales continued. “That affidavit then becomes sufficient legal authority to compel a third party like a bank to turn over a decedent's accounts to the heirs named in the Small Estate Affidavit.”

These options still require a probate court. However, the timeline is typically much shorter than traditional probate.

The Bottom Line

It’s possible to avoid probate through joint ownership of properties, trusts, and beneficiary designations. However, probate will be necessary to cover any assets you own individually that don’t have a beneficiary or aren’t included in a trust.

Many states have streamlined probate processes for estates where the value of the probated property is relatively low. These processes are still a form of probate, but they’re simpler than traditional probate.

Frequently Asked Questions (FAQs)

How long does it take to probate a will?

The timing depends on a number of factors, including state laws, court backlogs, the size of the estate, and whether anyone is contesting the will. For relatively simple estates, the process can take anywhere from a few months to a year.

Can you probate a will without a lawyer?

The laws vary by state. “An attorney is not required to probate a will or administer a probate estate, but it is wise to at least consult with one,” Paquette said. “A person without legal experience will likely not know the various requirements, such as publishing notice to creditors in the legal news, how to give notice to known creditors, and so on.”

How much does it cost to probate a will?

Typical probate costs are 2% to 5% of the probated assets’ value. These expenses are paid by the decedent’s estate.

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Article Sources

  1. Fidelity. "Settling the Estate: Probate."

  2. American Bar Association. "Probate Process."