Is Probate Required to Transfer Property Left in a Will?

By Marie Murdock

A decedent, through the estate planning process, may have provided for the majority of his property to pass outside of probate, perhaps leaving the personal representative of his will unsure whether or not probate is necessary due to the limited remaining assets. If there are remaining assets, however, some form of probate may be required by state law.

Real Estate

If the decedent did not provide for real estate to pass outside of his estate through either a survivorship deed or by deeding property to his children prior to his death, then his will should be probated to make sure the property passes as intended under the will’s terms. If the decedent acquired property with his spouse as joint tenants with survivorship provisions, then upon his death, the property passes to his spouse without probate. If he chose to deed the property to his children prior to his death, he may have reserved a life estate allowing him to live on the property. At his death, this life estate terminates so that his estate has no remaining interest in the property.

Vehicles

If a vehicle is titled with the decedent as the sole owner, then in many states, probate will most likely be required to transfer title to the vehicle. If, however, the vehicle is titled in such a way that upon the decedent’s death, it passes to a surviving co-owner and there is no other property that would require transfer under the will, then probate may be unnecessary. Some states may have limited probate actions. In Georgia, for instance, if the only property in the estate is a vehicle, you may file a “will not for probate” action, where the will is deposited with the court but not probated. In this instance, the licensing office may be able to re-title the vehicle without probate.

Protect your loved ones. Start My Estate Plan

Cash or Financial Accounts

Financial accounts in the form of checking accounts or mutual funds may be jointly owned such that they also transfer to the co-owner at death. If the decedent was the only owner on the account, however, probate may be required to obtain the money. Some states make provisions for limited probate or small estates probate when the value of the estate is less than an established amount. This often saves both the personal representative and the courts time and paperwork as opposed to a full formal probate action.

Personal Effects

If there is only one child or spouse who acquires all property of the decedent, there are only personal effects remaining in the estate, all debts of the decedent have been paid and there are no parties that could take issue with the disposition of the personal effects, then probate may not be necessary or only a small estates probate may be required. If you are the named personal representative, consult with an estate planning attorney in your state to determine if probate is necessary, and discuss any ramifications of not probating a will.

Protect your loved ones. Start My Estate Plan
Do Wills Have to Be Filed?

References

Resources

Related articles

How to Sell a Vehicle in Michigan When Owner Dies Without a Will

Vehicles are often left riderless when their owners die, at least momentarily; however, riderless doesn't mean useless. The cars can be sold so beneficiaries of the deceased can use the money from the sales. Even if you are the vehicle owner’s close family member, the title of the vehicle must be in your name before you can sell it. Michigan has a specific procedure for putting a vehicle in your name when you are the closest relative to the deceased owner, enabling you to keep the vehicle or sell it as you wish.

Legal Rights of the Family After a Death

When a loved one dies, settling his estate can seem like a daunting task. Those left behind may not know what rights they have as a beneficiary or heir of an estate. The legal rights of family members depend largely on whether the decedent had an estate plan in place. Most states have a probate court where a beneficiary or heir can enforce his legal rights.

Probating a Small Estate in Hawaii

Probate is a court-supervised process involving the collection and distribution of assets owned by a deceased person. In Hawaii, if the estate is valued at less than $100,000 in property with no real estate, no probate proceeding is necessary; the heirs can simply execute notarized documents and collect their inheritance. If the deceased left an estate worth less than $100,000, but owned real estate, a probate proceeding is typically necessary, but the process is more streamlined than that of a regular probate.

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

Related articles

Where to Probate a Will

A personal representative named in a will may have many and varied duties during probate. Once a death has occurred, he ...

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 ...

Colorado Law: Death Without a Will

You may want to bypass the probate process when planning a Colorado estate. Methods of disposing of property at your ...

Death Without a Will in Michigan

Under Michigan law, when a person dies without a will, it is said the person died intestate. The law has rules for what ...

Browse by category
Ready to Begin? GET STARTED