Do All Wills Need to Be Probated?

By Carrie Ferland

Probate is the legal process for the administration of an estate after a decedent’s passing. The probate process allows the surrogacy court to review the validity of the decedent’s will, interpret the instructions it conveys and distribute the estate’s assets among the beneficiaries. Probate also extends an opportunity for outside parties to file claims against the estate for outstanding matters that the decedent was unable to resolve prior to passing. Probate is not legally required, and in fact, many estates have avoided probate. However, the executor should still consider probate for complex estates, as the process ensures the decedent’s interests are protected and reduces the executor’s responsibilities.

Small Estates

A meager estate with little or no assets and only one beneficiary often qualifies as a “small” estate. Small estates are best suited for skipping probate, especially when the decedent left behind a will bequeathing his entire estate to a surviving spouse or another sole beneficiary. The sole beneficiary can petition for collection by affidavit, which only requires the beneficiary to submit a copy of the will and a signed affidavit to the probate court stating she is entitled to receive the decedent’s property, at which point the court will release the property to the beneficiary’s possession and the matter is considered resolved.

Common Estates

Most decedents leave behind a “common” estate, which is typically defined as an estate with “sufficient” assets collectively worth less than $1 million. Common estates usually include at least one piece of real property, some cash assets and personal property. Common estates can be administered without undergoing probate, especially when just a few beneficiaries will inherit most of the assets. The executor can avoid probate by securing an employment identification number (EIN) for the estate and establishing a bank account, resolving the estate’s outstanding liabilities and dividing the assets among the named beneficiaries according to the will.

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Contested Estates

Some estates are challenged by outside parties on the grounds that the testator’s will is invalid. When a party contests the will, the executor must submit the will for probate. The probate court will review the will to determine its validity and consider any challenges made against it. The executor does not have the power to validate a will or handle challenges on any grounds, so probate is required under these circumstances.

Estates Facing Abatement

When an estate owes more in liabilities than it holds in assets, the estate must undergo abatement. In situations in which the executor even suspects abatement may be inevitable, he should immediately submit the estate for probate. The executor does have the authority to handle outstanding claims himself, but he faces personal liability if he fails to resolve legitimate claims appropriately or pays out on an illegitimate claim. Further, the beneficiaries may file claim against the executor for failing to act in their best interests. The court is immune from liability, and by submitting the will for probate, the executor absolves himself of any personal liability he might incur.

Additional Considerations

Even if an estate is suited for avoiding probate, the executor should still strongly consider filing. Probate offers unique protection to the estate that ensures the testator’s and the beneficiaries’ interests are preserved. The probate court has the authority to assess the estate’s records for misappropriation, embezzlement or other fraud and the ability to stop and prosecute persons who attempt to defraud the estate. Probate also reduces the administrators’ obligations, easing some of the responsibilities of the executor and expediting the process for all parties.

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When Does a Will Go to Probate?


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