Do All Wills Have to Go Through Probate?

By Michelle Kaminsky, J.D.

Do All Wills Have to Go Through Probate?

By Michelle Kaminsky, J.D.

Probate is the court-supervised process of distributing a deceased person's assets. Generally, wills that transfer ownership of the testator's real and personal property to living beneficiaries go through probate, though many states do provide simplified procedures for estates of smaller value.

Red-headed woman shows document to man next to her and woman across the table

Some assets, however, do not pass through probate, and there are also estate planning techniques you can use to avoid probate altogether.

Overall, whether probate is necessary depends upon state law, as well as the type of property involved and how it is owned.

Probate Assets

Assets owned solely by the testator are subject to probate. The most common examples include bank accounts, real estate (if titled only in testator's name or held as tenants-in-common), personal property, and business interests, such as if the testator was a member of a limited liability company (LLC).

If the testator has included instructions for the disposition of these types of assets in a will, the probate court will transfer title accordingly. If the decedent did not have a will, the assets are subject to distribution through the state's intestacy laws. Even in the latter situation, the assets must pass through probate in order for title to be transferred properly.

Nonprobate Assets

Not all assets are subject to probate. The proceeds of life insurance policies and certain retirement accounts with named beneficiaries, for example, pass directly to the named beneficiaries at death. Probate is not needed for this transfer.

Note, however, that if the named beneficiary is also deceased, the asset would have to go through probate for the funds to be distributed to the person entitled to them under state law.

Real estate often does not require probate, either. For instance, most deeds held jointly between two people contain provisions for the deceased's share to pass automatically to the survivor. Keep in mind that the property would still require probate eventually when the second owner passes away.

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 can rack up expenses for the estate and also take a lot of time to sort out.

The criteria for simplified probate in most states is the value of the estate, usually minus the value of any real estate. In West Virginia, for example, if the testator's assets, not including real property, are worth less than $100,000, the estate is eligible for a simplified probate procedure.

Avoiding Probate

Even large estates can bypass the probate process through the use of revocable living trusts. To create a revocable living trust, a grantor transfers assets to the trust and serves as trustee in order to retain control over the assets during his lifetime. Legally, however, the trust is the owner of the assets. Therefore, when the trustee dies, there is no need for probate as the successor trustee has the authority to pass assets to beneficiaries.

In order to avoid probate entirely through a revocable trust, all assets must be transferred to the trust. Any asset that has been overlooked or omitted would still have to go through probate to transfer its ownership.

Skipping Probate

If the decedent owned assets for which previous arrangements had not been made, there is often no way to legally transfer ownership of those assets to someone else without going through the probate process.

Depending on state law, however, you may be able to keep property in the decedent's name indefinitely so long as taxes are paid, but you would not be able to sell the asset. And some states, such as Florida, do have special provisions for transferring title of motor vehicles after the owner has died.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.