Whether you create a will or die without one, some of your property must go through probate before being distributed to your beneficiaries or heirs. Your state’s probate process provides rules under which your estate’s representative gathers your assets, pays your debts and distributes any remaining assets according to your will or, if do not have a will, state law. Depending on your state’s laws, you may be able to include language in your will that makes this process easier for your representative by lessening the court’s level of intervention.
When your estate requires substantial court involvement, it may be referred to as an “intervention” estate. Although your state may use a different term to describe the process, all states typically have versions of probate that require your estate’s executor, or representative, to obtain court approval for almost every action. For example, intervention probate in Washington requires a representative to request permission from the court before acting, provide an annual accounting to the court, furnish his receipts and canceled checks to the court and heirs, and obtain a decree of distribution from the court at a final hearing. Some states call this process supervised probate or administration, or other similar term.
Unlike with an intervention probate, non-intervention estates allow your executor to act without court oversight. Some states call this “independent” or “informal” probate, and state laws vary about which estates are eligible for non-intervention probate. For example, Colorado allows your estate to be settled without any court intervention if you have less than $50,000 in assets and no real estate. If your estate does not qualify for this level of probate, Colorado allows an informal process in which the court has a limited role but still ensures the terms of your will are followed and your representative can be held accountable.
Determining Court Intervention Levels
Some intervention levels are determined by the contents of your estate. For example, Illinois allows a special process for estates less than $100,000 that do not involve real estate. Depending on your state’s laws, you may include your preference for an intervention or non-intervention probate in your will. If you expect your estate to become complicated, perhaps because of the personalities involved, you might want to use your will to indicate a preference for court intervention. If you do not make an election in your will, your representative or beneficiaries can make the request, either by making an election when the will is submitted for probate or by filing a petition with the court.
Executor’s Fiduciary Responsibilities
Your executor is not relieved of his responsibilities to your estate simply because the probate process is informal or requires little court intervention. Even in non-intervention probate cases, your executor has a fiduciary duty to your estate, meaning he must act honestly and in your estate’s best interests. Your beneficiaries still have the right to raise issues about your executor’s actions to the court. For example, if your executor steals money from the estate, your beneficiaries can challenge him in court, even if your estate was a non-intervention or independent case, and the court could remove your executor.