When Do You Have to Go Through Probate?

Leaving a will behind when you die is the responsible thing to do. But leaving a will, doesn’t always mean that there’s no need for probate. An estate may undergo formal probate for many reasons including when a will is contested, unclear, or invalid, or when the assets are held only in the deceased’s name. And when there’s no will, probate is often required to oversee the distribution of the deceased’s property.

As a general rule, you’ll want to avoid probate if possible. Unfortunately, there are situations where you don’t have a choice. Let’s explore those situations that determine when you have to go through probate.

When There’s A Will

Determining if a will needs to go through probate depends on the laws of your state and the property you hold at death. Some states, such as Washington, do not require probate to be filed. Other states base the need for probate on the value of the estate. Common situation when you have to go through probate with a will include:

  • Will Contest: Disputes can arise because family members are unhappy with the deceased’s estate plan. Death can cause old family tensions to resurface causing disputes over insignificant family property. A beneficiary may contest the validity of a will’s construction. If someone who could take under the will protests the division of property, you must probate the will. All challenges are handled in probate court.
  • Value of the Estate: Smaller is better when it comes to probate. It’s common practice to allow estates falling below a predetermined value to avoid probate. In California, estates valued over $150,000, and that don’t qualify for any exemptions, must go to probate. In Oklahoma, a probate is required on an estate valued over $20,000.
  • Assets Held Only in Deceased’s Name: Probate is not just about distributing property. It also initiates the legal transfer of title to that property. If a person dies and owns real estate, regardless of value, either in his/her name alone or as a "tenant in common" with another, a probate proceeding is typically required to transfer the property. However, many states offer a quicker, less expensive probate-alternatives for transferring title to cars.

When There’s No Will

When a person dies without a will, they are said to have died “intestate”. The laws of the state where you reside will determine how your property is distributed upon your death. However, probate administration when there’s no will is similar to when there is one. When you die, your property is classified as either probate property or non-probate property.

  • Determining the Estate’s Heirs: If no Will exists, the property is divided among the person's heirs. In California, if the person has a spouse and or children, the property first goes to them. If there is no spouse or children, the property goes to the person's next nearest relatives. The laws of intestate succession are very state specific.
  • Transfer of Assets: When there is no will, probate is frequently required to determine the deceased owner’s probate assets, assess their value and distribute them to creditors and heirs. It’s not uncommon for property transferred under intestacy to be counter to what the deceased would have chosen if living. Probate transfer title to the heirs with the closest family relationship to the deceased. Special provisions, such as the small estate exemption, also apply to an estate without will.

Still Have Probate Questions? Get a Free Case Review

In death as in life, it’s good to be in control of your affairs. When you enter probate, it can feel like the court has most of the control. Whether you’re working on your estate plan or closing-out the affairs of a loved one, assistance from an experienced attorney can help you through the process. Receive a free case review to understand how probate may affect your estate.

Next Steps

Contact a qualified estate planning attorney to help with the probate process.

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