Do All Wills Have to Go Through Probate?

By Beverly Bird

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.

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.

Protect your loved ones. Start My Estate Plan

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.

Protect your loved ones. Start My Estate Plan
Can a Will Get an Estate Out of Probate?

References

Related articles

Is a Revocable Trust Included in the Gross Estate?

When a person undertakes estate planning, one of the many tools he can use is the revocable trust. This device is popular because it keeps the trust assets out of probate, which allows the beneficiaries to receive assets quickly after a decedent’s death. While the implications of a revocable trust to the probate estate is clear, the effect of the trust on the calculation of the gross estate for tax purposes can be ambiguous.

When Don't You Need to Probate a Will?

When an individual dies and leaves a will detailing how his property should be distributed, the will must usually go through a probate process. However, the existence of a will does not mean that probate is always necessary. An individual can plan his estate so all of his assets pass outside of a will, making probate unnecessary. Many states also have laws that allow estates of a certain size to avoid the probate process.

Florida Last Wills Vs. Trusts

Planning for your eventual demise can help you protect your assets and ensure their smooth transfer of your heirs. However, estate planning can be a complicated process. There are two primary vehicles for estate planning: last wills and testaments, or simply wills, and revocable trusts, or simply trusts. Each legal instrument is governed by Florida state law for Florida residents.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Do All Wills Have to Go Through Probate in Mississippi?

The assets -- money and property -- of a deceased Mississippi resident must go through probate to transfer those assets ...

Is a Living Trust Liable or Subject to Probate?

A living trust holds assets that are managed by a trustee for intended beneficiaries. Also called a revocable trust, it ...

Does a Beneficiary of a Living Trust Have the Right to See the Trust?

All trusts, including living trusts, are established to benefit certain individuals or organizations identified in the ...

What Is a QPRT Trust and How Does It Work?

The QPRT, or Qualified Personal Residence Trust, is a legal tool which is designed to reduce estate or gift taxes on ...

Browse by category
Ready to Begin? GET STARTED