There’s a common misconception about Wills, settling an estate and the probate process. A lot of people think that a Will always has to go through probate. But the reality is, not all Wills and assets have to be probated. There are multiple instances and reasons why a Will may not have to go through the complex process of probate. So when, exactly, does a Will need to go through probate?
[Need help with probate? We offer helpful probate services and will work with you to find the plan that meets your needs. Learn more.]
Wondering what probate actually is? Check out these articles to learn more.
Do All Wills Go Through Probate?
No, all Wills do not go through probate. Most Wills do, but there are several circumstances where a Will could circumvent the entire process. Some property and assets can avoid probate, and while the actual rules may vary depending on the state you live in, some things may be universal.
Small Estates - Almost every state has some type of process for handling small estates. The size of the estate is determined by its overall value, and even if you live in a state that doesn’t allow you to completely bypass the probate process, there’s generally a simplified process available, with less requirements and minimal court supervision. You may be able to avoid probate if, in your state, the following is true:
Beneficiaries can claim property via an affidavit from the court
A surviving partner or dependent can take an affidavit to a financial institution to transfer ownership
Check with a local Estate Planning attorney in your area to find out the laws surrounding Wills and probate.
Jointly Held Assets - It’s fairly common to hold property jointly. If you have assets titled in joint names with rights of survivorship - with either your spouse, children, business partner or anyone else - upon your passing, the property would immediately transfer to the surviving owner. The caveat here is if both owners pass away at the same time, or if the surviving owner also passes away without adding another joint owner to the title, at that point, probate would become necessary.
Property in a Revocable Living Trust - If you have a Revocable Living Trust that holds assets, anything inside that Trust would not go through probate. Living Trusts avoid probate entirely. Instead, they include a Terms of Trust Agreement that allows assets to go directly to beneficiaries without any probate involved.
It’s not uncommon to also create what’s known as a “Pour-Over Will,” which is a safeguard to catch any assets you may not put in your Living Trust. The Pour-Over Will automatically transfers assets to the Trust upon your death. Note that in this case, probate would be required.
Property with Named Beneficiaries - Designating beneficiaries, or creating Payable on Death (POD) or Transfer on Death (TOD) accounts, also allows you to avoid probate. Any account or policy with a named beneficiary would pass through automatically after your death.
The probate process can be lengthy and complicated, especially during a time of grief. If this is something you don't want to go through alone, consider getting help from our probate experts. They offer unparalleled support and guidance to simplify the probate process.
Frequently Asked Questions About Wills Going Through Probate
Understanding what does and doesn’t go through probate can be confusing. Below, we break down some of the most common questions people tend to have when they’re trying to wrap their heads around this concept.
When Does a Will Go Through Probate?
In general, after you die, your Will goes through probate to ensure every aspect is followed out per your instructions and wishes. But probate also occurs if you die without a Will or other Estate Planning in place. This is known as dying intestate. And yet another case when probate is necessary is if beneficiaries are improperly titled, refuse the inheritance, cannot be located or otherwise invalid, such as if a beneficiary passes away before you do.
When Does a Will Not Need to Go Through Probate?
With careful planning, you can set up an estate that avoids probate. Probate can be timely, costly, and frankly, stressful for your loved ones. In addition to these drawbacks, there are also legal fees and estate tax which can be drastically increased throughout the probate process. And the final plus to avoiding probate is the idea of privacy. Probate is a matter of public record, so if you want portions or all of your estate to remain private (including what assets go to whom), you might want to look into ways to avoid probate.
Remember, you may be able to effectively avoid probate through any of the following methods:
Establishing and funding a Revocable Living Trust - Assets that are placed in your Living Trust can be used while you are alive, but when you die they pass through to the Trust beneficiaries you’ve named, without probate.
Designating beneficiaries on your life insurance policies - Ensuring your beneficiaries are up-to-date and still applicable can streamline and simplify the process of proceeds going directly to them without probate after you pass away.
Using retirement accounts that allow you to name a beneficiary and bypass probate - Simply naming a beneficiary on certain retirement accounts would result in your account balance transferring to that person upon your passing.
Titling real estate as joint tenants - Joint tenancy or joint tenants with right of survivorship by definition has two owners. When the first owner passes away, the survivor automatically owns the property.
What Happens If You Don’t Go Through Probate?
If you don’t properly complete the probate process, creditors have the right to continue pursuing payments they believe the estate owes. Probate effectively closes out any debts an estate is responsible for. Failing to go through probate could result in you being held personally liable for any expenses that result.
Can I Skip Probate?
While technically nobody is going to show up knocking on your door asking for a Will to probate, there is no other way for beneficiaries to legally earn ownership of property, unless it’s been set up to specifically avoid probate prior to the owner’s passing.
Some states allow for exceptions to this. For example, some states let families maintain ownership on property that’s in the decedent’s name even after death, as long as taxes are paid and the property is not sold. Check your local state laws to see the specifics.
Probate can be messy and complicated, but when you understand the goal and the process, it suddenly may seem less stressful. That said, there are many valid reasons for avoiding probate - from emotional reasons to financial ones - and if you want to set up your estate to largely (or entirely) avoid probate, know that there are ways to do so.