When Is Probate Required?

When a loved one dies, not only are you left with heavy emotions—you are also left with the burden of what to do with their assets and debts.

Probate can create a strategy to properly close an individual’s estate after they’ve died. The probate process is not always required but may be necessary under certain circumstances. 

If you’re unfamiliar with the probate process, we can connect you today with a local unbundled lawyer who will provide valuable guidance.

What Is Probate?

Probate is the legal process overseen by the court that settles a decedent’s, or deceased individual’s, estate after they die. Settling the estate can include disposing of assets and property and paying off any remaining debts.

Most estates must go through probate unless certain exceptions apply.

Who Handles Probate?

A designated individual must handle all probate matters. This person is referred to as an executor, or personal representative, of the estate.

If there is a last will and testament, it’s likely the decedent named their chosen executor in this document. If there is no will, the probate court judge will appoint an executor. It is often an individual close to the decedent, such as a spouse, child, or parent.

In a will, decedents often list multiple individuals they’d like to be executors, usually in order. If the first individual is deceased or unavailable for any reason, the next person will be the executor. It will go down the list until one of the individuals is willing and able to serve.

Should the will list executors and none of them is alive, available, or willing to take on the position, the court can intervene and appoint one.

The executor plays an integral role in the probate process, and the court will make sure the appointee is suited for the job.

When Is Probate Required?

Probate is not always necessary. However, in most cases, a decedent’s estate will need to go through the probate court.

The Decedent Died Intestate

If a decedent dies intestate, meaning they don’t have a will at the time of their passing, their estate must go through the probate process. A will, or a last will and testament, is a document addressing certain details and wishes after passing, and includes:

• A list of assets and property
• Who gets these assets and property
• What should be done with the residue of the estate (what doesn’t go to a certain beneficiary)
• Appointment of guardians for children and/or pets

Dying without a will often require probate.

The Will Is Lost/Invalid

When you, as the executor, apply for probate, you’ll need to provide the court with the decedent’s will. Often, individuals keep their wills in safe places, such as safety deposit boxes or with a lawyer. Sometimes, even after a diligent search, you are simply unable to find the will. If a will is lost, you may need to apply for probate as if the decedent died intestate. 

Additionally, if a will is invalid, the court cannot use it. A will may be invalid for various reasons:

• The testator (decedent) created it without the requisite mental capacity
• The will was not signed by witnesses
• The testator did not sign it
• The testator created the will fraudulently or with undue influence

Certain other factors may make a will invalid, depending on the laws of your state. If a will is invalid, you will need to probate the decedent’s estate as if they never had one. 

The Decedent Didn’t Have a Trust

A trust is a legal document establishing a relationship between a trustee and the beneficiaries. The creator of the trust gives a specific individual, a trustee, power over certain assets for the benefit of an appointed beneficiary. Many choose to put all their assets and property in trusts as a way to avoid probate after their death.

If the decedent did not put their assets or property in a trust, the executor of the estate will need to file for probate.

Property Is Solely in the Decedent’s Name

If the decedent has property exclusively in their name alone, the property will go through probate. That property will need to be legally transferred to a beneficiary and cannot be done without probate.

Real Property Owned as Tenants in Common

Two people can own property together, but this does not automatically mean when one of the two dies the other gets the property outright. This is especially true in the case of tenants in common.

If one of the owners of a property dies, the other can only get full ownership with specific, explicit language in the deed. For example, instead of “tenants in common,” the deed can read both owners are “joint tenants with a right of survivorship.” If there is a right of survivorship, at the death of one owner, the other owner gets their 50% ownership interest, automatically having full ownership without the need for probate.

Right of survivorship language can also be used for other assets, such as bank accounts.

When Is Probate Not Required?

When an individual has a set estate plan, their estate may not need to go through probate. Many facets of a good estate plan can help avoid probate. These include:

• Wills
• Trusts
• Joint Ownership
• Payable on Death (POD) designations for insurance policies or bank accounts
• Transfer on Death (TOD) designations for certain property and assets

States also have rules regarding what types of estates can forgo probate. Usually, if a decedent’s estate qualifies as a “small estate” with limited assets, the estate will not need to go through probate. This can vary by state, as every jurisdiction has a different requirement for estates meeting this exception. 

What Does the Probate Process Entail?

Your state’s laws and procedures will dictate the necessary steps. In general, every probate will require:

• Collecting all necessary documentation: To file your request to open a probate case, you must provide the court with essential documentation, including the decedent’s death certificate and their will, if one exists. 
• Filing a petition to open probate and be appointed as executor: To open a probate case, you must file a petition with the probate court. You will also request to be appointed executor. A formal appointment as executor is crucial, as the court will provide proper documentation as proof of your appointment that will be required to complete certain probate tasks.
• Notifying heirs and beneficiaries: Even if heirs and beneficiaries are aware you are opening probate, the court requires you to properly notify them. This gives these individuals a chance to object or hire counsel to represent their best interests if they wish.
• Notifying potential creditors: The creditor claim period is one of the most important parts of the probate process. Depending on how your state handles creditor claims, you’ll need to notify creditors of the decedent’s passing. This allows creditors the opportunity to file a creditor claim to request payment of the decedent’s debts. Every state has its own creditor period, and the probate case must remain open during this period.
• Assessing and maintaining assets and property: The executor must assess all of the decedent’s assets and property. You will likely have to file a document with the court with a list of all of the assets and values. You’ll also need to maintain any property while it is in your possession before it is transferred to the designated beneficiaries.
• Paying debts: If the decedent had any outstanding debts, you can use their assets to settle them. If a creditor files a creditor claim for payment, you may pay the requested amount or challenge the claim.
• Distributing assets: When the time comes, you’ll be responsible to ensure all assets and property are properly distributed to the right parties. 
• Filing a tax return: Estates must file tax returns. If taxes are due, the executor is allowed to pay them using funds in the estate. 
• Closing the estate: Once all necessary tasks are complete, debts settled, and assets disposed of, the executor can file a petition to close the estate. Once the estate is closed, the executor’s duties are officially done.

Does Everyone Need a Probate Attorney?

Executors often choose to handle probate completely on their own. Nonetheless, it is usually easier to have the help of a qualified probate attorney.

Most people have never handled a probate case and are unsure what executorship entails. If you don’t know what to do, this can prolong the process and make it feel overwhelming. A probate lawyer has the knowledge and experience to help ensure things get done in a timely manner and the estate can close successfully.

If you’re willing to handle your probate case without a lawyer to help you with the key components, an unbundled lawyer may be your best solution.

When you hire an unbundled lawyer, you’re only paying for the specific services in which you need assistance. Services from unbundled lawyers start at $500 – $1,500, much less than a full representation attorney. Whether you need minimal guidance or more significant help with your probate case, Unbundled Legal Help can connect you with a local attorney.