Do All Estates Have to Go Through Probate?

If you have recently suffered the loss of a family member or loved one, you may be concerned about the legal steps required to probate the decedent’s estate. Probate is the legal process in court by which a decedent’s estate assets are inventoried and valued, debts of the decedent are paid and assets eventually transferred to the beneficiaries or heirs of the estate. Whether or not an estate must go through probate depends on a number of factors.

Wills, Trusts, and Estate matters are governed by state law. This means that each state will determine its own procedures and rules surrounding the disposition of a decedent’s estate. All states have some type of probate procedure. Most states also have a less formal procedure for small estates that will save the estate fees and costs as well as time. Whether or not an estate qualifies for a small estate administration typically depends on the size and value of the estate in general as well as the type of assets involved.  In 2022,  a small estate in California is typically one valued at less than about $184,000.

It may also depend on whether or not the decedent left behind a Last Will and Testament. Often, when there is no Will, the estate must go through formal probate in order for the state to determine who the legal heirs are to the estate.

Other factors that affect whether or not probate may be needed are if the decedent held title to assets in joint ownership with another, e.g., joint tenancy with right of survivorship, or if the assets have designated beneficiaries, e.g., insurance policies and retirement accounts such as IRAs, or if the decedent properly created and funded a revocable living trust.

If you think your loved one’s estate may qualify for a less formal probate procedure or avoid probate altogether, consult with an experienced and qualified estate planning attorney as soon as possible. Eacm method has its pros and cons. You need that expert advice to determine which one is the best for your family and you.

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Timothy P. Murphy

Timothy P. Murphy is an estate planning and elder law attorney whose practice emphasizes helping people to build, preserve and pass on their wealth. He works with his clients to accomplish their goals while avoiding unnecessary court proceedings and minimizing or eliminating exposure to death taxes.

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