Is it Necessary to Probate a Last Will & Testament?

by Tom Streissguth
The lengthy, complex process of probate is not always necessary.

The lengthy, complex process of probate is not always necessary.

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A will is a statement of your intentions for the division of your estate after your death. When circumstances demand an examination of the will by the legal authorities, a state probate court becomes involved. The probate court makes the final decision on the distribution of assets through the work of a court-appointed trustee, or the executor named in the will. Many wills and estates are not subject to the probate process, however.

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No Assets

Probate court is not usually necessary in the case of someone who dies without assets, such as money, property or business partnerships, or someone who dies with liabilities greater than assets. If there are outstanding debts, however, the court may have to decide how creditors will be paid out of any surviving assets.

Trusts

Probate is also not required in the case of estates in which the assets are held in trust. In these cases, a trustee is responsible for transferring the assets of the trust to the designated beneficiary, and paying any outstanding debts, taxes, etc., that may be due and for which the trust may be legally liable.

Insurance and Pensions

Assets held in the form of life insurance and retirement pensions are also not subject to the probate process. In these cases, a beneficiary is named in the account documents and the assets are distributed by the custodian or organization that is handling the account. In addition, assets held jointly with a spouse can be transferred to the surviving spouse without probate.

Expedited Probate

Many states have simplified procedures that allow wills to be established and executed without full probate process. California, for example, allows the transfer of assets in estates worth up to $100,000, depending on the circumstances, to be expedited without probating. If there are extensive claims on the estate, or the will is being contested, this "short-form probate" is not valid, and the will will have to be fully probated.

Distribution of Assets

The probate court may also allow the distribution of assets before probate if there is a principal beneficiary by law, if other heirs have signed an authorization for the distribution to proceed, and agree to protect the account holders, such as banks, against all future claims against the estate.