Do All Wills Have to Go Through Probate?

by Beverly Bird
    The necessity for probate depends on the nature of the deceased’s assets.

    The necessity for probate depends on the nature of the deceased’s assets.

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    Wills do not have to go through probate unless you want to transfer ownership of assets owned by the testator, or the person who wrote the will, to her living beneficiaries. Many states provide legal options for doing this through simplified procedures for limited estates. Generally, probate is required for large, complex estates with multiple assets to settle the testator’s affairs in an orderly, legal way. However, there are ways to avoid probate even in this instance.

    Neglecting Probate

    When there is no urgency to transferring title of assets left by the testator, or the person who wrote the will, some families do not bother to go through the process. There is no penalty for this. For instance, in Florida, if the family continues to make tax payments on property owned by the testator and does not attempt to sell it, in most cases the asset can remain in the testator’s name indefinitely. However, check with an attorney in the state where the testator died to be sure this holds true there because state laws vary.

    Bypassing Probate

    Even large estates can bypass the probate process through the use of revocable living trusts. A testator transfers assets to the trust during his lifetime and is generally the trustee, retaining control over his assets, but technically the trust owns them. Therefore, when the trustee dies, there is no need for probate because the owner of the assets -- the trust -- remains “alive.” However, this is only a viable option when all assets are transferred to the trust. Probate would still be required to transfer ownership of any that are overlooked or omitted.

    Small Estates

    Many states offer simplified versions of the probate process for small estates. Although technically these procedures are still “probate,” they bypass many formalities that incur court costs and expenses for the estate and that can take up a lot of time. The criteria for simplified probate in most states is the value of the estate, usually minus the value of any real estate. For instance, in West Virginia, if the testator’s assets not including real property are worth less than $100,000, the estate is eligible for a simplified procedure. (

    Non-probate Assets

    Some wills include assets that are not subject to probate. These include life insurance policies and retirement accounts with named beneficiaries that pass directly to that beneficiary at death, so probate is not necessary to transfer the asset. Real estate often does not require probate, either. For instance, most deeds that are held jointly between two people contain provisions for the deceased’s share to pass automatically to the survivor. However, the property would still require probate eventually when the second owner passes away.

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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