A not so uncommon question that estate planning attorneys are asked is “When is probate really required?” Like a lot of estate planning questions, the answer is subject on the particular laws of the state where you reside at the time of your passing, in addition the laws of any other state where you’re the real estate owner.
According to NayLaw, “Probate is required only when there is no other mechanism by which to transfer the asset to the heirs or devisees of the estate. When the decedent has taken other steps for distributing assets, a probate may not be necessary.”
The following is a list of the grounds why an estate would be required to be probated.
Assets Owned Solely in the Deceased Name
When the deceased owned any property solely in their name, devoid of any other joint owners or a POD designation, then in a lot of cases the property will be required to be probated to take it out of the deceased’s name and put into the names of the deceased’s beneficiaries. A deviation in lot of states is an automobile.
For instance, in the states of Florida and Tennessee, an automobile may be transferred to the deceased’s heirs at law without the opening of a probate estate. Apart from that, many states have a straightforward approach for “small estates” that takes considerably less time than a full probate management. In the state of Florida, a small estate is thought to be valued at $75,000 or less.
Owner of Assets as a Tenant in Common
When the deceased was the owner of any property in their personal name as a tenancy in common with other individuals, then in a lot of cases the deceased’s tenant in common’s portion will required to be probated to take it out of the deceased’s name and put into the names of the deceased’s beneficiaries.
The “small estate” approach aforementioned is also applicable to the tenancy in common’s interest if the deceased’s partial share is valued at less than the applicable state’s small estate limit amount.
Note that if the tenancy in common was retitled into the name of the deceased’s Revocable Living Trust prior to the deceased passing away, then the interest will not be required to be probated.
Predeceased Beneficiaries or No Designated Beneficiaries
If the deceased was owner of a POD or similar kinds of accounts; a Health Savings and/or Medical Savings Account; life insurance policies; a retirement accounts, comprising of an IRA or and 401(k); or an annuity, and each of the designated beneficiaries of the accounts or policy have predeceased the deceased, or if the deceased didn’t designate any beneficiaries at all, then in a lot of cases the accounts or policy will be required to be probated in order to put it into the names of the deceased’s beneficiaries.
The “small estate” approach aforementioned also is applicable to an account or policy not having a legitimate beneficiary if the account or policy has a value at less than the relevant state’s small estate limit amount.
The Decedent Did Not Have a Legal Last Will and Testament
If the deceased does not have a legal last will and testament at the time of their passing and one or more of the situations detailed above apply to the deceased’s assets, then in a lot of cases the assets will need to be probated in order to get them out of the deceased’s name and into the names of the deceased’s heirs at law.
The “small estate” approach aforementioned is also applicable to an intestate estate if the value of the deceased’s property is less than the applicable state’s small estate cut off amount.
The Deceased Has a Legal Last Will and Testament
Even when the deceased has a legal last will and testament at the time of their passing, when one or more of the situations detailed above is also applicable to the deceased’s assets, then in a lot of cases the assets will be required to be probated in order to take them out of the deceased’s name and put into the names of the deceased’s beneficiaries designated in the will.
The “small estate” approach aforementioned is also applicable to a testate estate when the value of the deceased’s property is lesser than the applicable state’s small estate limit amount.
Source:
-
Garber, J. (2020, September 25). Do You Know When Probating a Will Is Necessary? Retrieved December 22, 2020, from https://www.thebalance.com/when-is-probate-necessary-3505265
Moshier Law Offers Estate Planning in Scottsdale, AZ
Our estate planning lawyer in Scottsdale can help with Wills, Family Trusts, Power of Attorney, Probate, Guardianship, and Conservatorship. Give us a call today for a free consultation.
Divorce and Family Law
When a case demands litigation, you’ll have the benefit of 19 years of litigation experience in California and Arizona. But when a case demands collaborative law or mediation, you’ll know every option.
