Must All Wills Be Probated?

by Joe Stone

Whether or not a will must be probated depends on the laws of the state where the deceased resided at death. Some states, but not all, have procedures designed to provide for the acquisition and distribution of estate assets without the need to probate the will through formal court proceedings. The requirements for these procedures vary among the states that allow it. In general, the availability of the procedure depends on the value and type of property in the estate.

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Basic Requirements

State laws vary on the issue of acquiring and distributing estate assets without probating the will. California, for example, is among the most permissive by providing procedures for all types of property; its primary requirement is that the value of the property does not exceed a statutory minimum value -- as of November 2010, $20,000 for real property and $100,000 for personal property. New York law provides a procedure involving personal property only, and use of the procedure depends on the property's value, the type of beneficiary and the time elapsed since the date of death. Texas law requires all estates involving a will to be probated regardless of the size of the estate.

Procedure

Each state that permits acquiring and distributing estate assets without probating the will has its own procedures for a proper distribution. Typically, an affidavit or declaration must be prepared in accordance with the appropriate state statute. For example, in California, Probate Code Section 13100 provides a form of affidavit for use to obtain the personal property of an estate that is less than $100,000, such as bank account funds. The form provides the basic legal language with blanks to insert the information appropriate to a specific case. The completed affidavit is given to the custodian of the estate property, such as a bank, who in turn gives the property to the estate's executor. The property can then be distributed according to the will. In addition to preparing the appropriate form, there can also be other requirements for properly using this type of procedure, such as notifying beneficiaries or creditors of the estate, or filing the will with the court. Even the simplest of probate-related procedures can have technical complexities that make seeking the advice of an attorney a wise step before attempting the procedure.

Summary Probate Administration

States that do not permit acquiring and distributing estate assets without probating the will usually have a summary probate procedure for estates with small value. For example, in Texas, as procedure called a "muniment of title" is a simplified way of probating a will. This procedure is available if the deceased left a will, but did not have any debts secured by real property at the time of death. The procedure requires an appropriate affidavit filed with the court, which then orders for providing the distribution of the estate assets without appointing an executor or administering the estate.

Considerations

Using procedures to acquire and distribute estate assets without the need to probate the will has the obvious advantage of saving both the time and expense associated with formal probate court proceedings. However, other factors can affect a decision whether to avoid probate. For example, the probate court provides a forum for resolving disputes if there is the likelihood of a will contest or disagreement among the beneficiaries as to who should act as executor. Also, if disputes arise from creditors of the estate, opening probate may limit the time for the creditors to take action to collect against the estate -- this can be relatively short, such as four months in California.