Can I Decline Probate?

By Art Smithers

“Probate” is a term used to describe the legal process of distributing the estate of a deceased individual, and it involves the appointment of a probate judge who is tasked with supervising the distribution of the decedent's assets. Whether or not probate is legally necessary will depend on several factors. Under the right circumstances, the beneficiaries may properly decline to probate.

How Probate Works

The typical probate proceeding follows well-established rules. It commences when the executor files a petition asking the court to supervise administration of an estate. If the decedent left a will, it is filed with the court clerk. The decedent's assets are located, listed and appraised in preparation for sale. Debt is identified and the debtors located. Heirs to the estate are contacted. The executor, following local state laws that prescribe how the assets are to be allocated, then obtains a court order authorizing payment of debts (including taxes) and distribution of the remaining assets among the heirs.

When Is Probate Unnecessary?

Several factors dictate whether an estate must be probated. The most important of these is whether any assets exist. The existence of a will, debt and beneficiaries is irrelevant if the estate has no assets. Even if assets do exist, however, probate may sometimes be avoided. For example, if the decedent held real property titled in joint name, the ownership rights held by the decedent are extinguished by his death – ownership of the property passes to the survivor and probate is unnecessary.

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The Purpose of Probate Court

Many a movie plot has centered on problems among squabbling heirs. One of the uses of probate court is to ask a neutral party – the judge – to resolve disagreements. This is particularly common where the value of the estate is substantial. Questions may arise about the validity of the will, the decedent’s state of mind at the time the will was executed or the impact of statutory rules mandating that certain heirs, such as the spouse and children, be included as beneficiaries to the estate. Heirs excluded from the will may challenge their exclusion. Finally, there is the question of the valuation of the estate. If, for example, the executor seeks to sell real property, is the selling price reasonable? These questions are typical of those that a probate judge may be called upon to resolve.

Declining Probate

Determining whether probate is necessary can be relatively simple. If the decedent's debt exceeds the value of the estate, there may be no point in trying to resolve the estate because the heirs will realize no benefit. Some states permit a creditor to commence probate proceedings, but the heirs may decline to participate, particularly where there is little chance they will receive anything from the estate. Similarly, if all of the assets are jointly held, or where state law permits transfer of title without the benefit of probate (for example, one type of bank account, called "POD" or payable on death, may be distributed without a court order), the heirs may well elect to decline probate.

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How Long Does One Have to Probate a Will?

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