A decedent, through the estate planning process, may have provided for the majority of his property to pass outside of probate, perhaps leaving the personal representative of his will unsure whether or not probate is necessary due to the limited remaining assets. If there are remaining assets, however, some form of probate may be required by state law.
If the decedent did not provide for real estate to pass outside of his estate through either a survivorship deed or by deeding property to his children prior to his death, then his will should be probated to make sure the property passes as intended under the will’s terms. If the decedent acquired property with his spouse as joint tenants with survivorship provisions, then upon his death, the property passes to his spouse without probate. If he chose to deed the property to his children prior to his death, he may have reserved a life estate allowing him to live on the property. At his death, this life estate terminates so that his estate has no remaining interest in the property.
If a vehicle is titled with the decedent as the sole owner, then in many states, probate will most likely be required to transfer title to the vehicle. If, however, the vehicle is titled in such a way that upon the decedent’s death, it passes to a surviving co-owner and there is no other property that would require transfer under the will, then probate may be unnecessary. Some states may have limited probate actions. In Georgia, for instance, if the only property in the estate is a vehicle, you may file a “will not for probate” action, where the will is deposited with the court but not probated. In this instance, the licensing office may be able to re-title the vehicle without probate.
Cash or Financial Accounts
Financial accounts in the form of checking accounts or mutual funds may be jointly owned such that they also transfer to the co-owner at death. If the decedent was the only owner on the account, however, probate may be required to obtain the money. Some states make provisions for limited probate or small estates probate when the value of the estate is less than an established amount. This often saves both the personal representative and the courts time and paperwork as opposed to a full formal probate action.
If there is only one child or spouse who acquires all property of the decedent, there are only personal effects remaining in the estate, all debts of the decedent have been paid and there are no parties that could take issue with the disposition of the personal effects, then probate may not be necessary or only a small estates probate may be required. If you are the named personal representative, consult with an estate planning attorney in your state to determine if probate is necessary, and discuss any ramifications of not probating a will.