How to Know If a Will Must Be Probated

By Joseph Nicholson

Probate is the part of the state court system that manages the administration of a deceased person's estate. There is no requirement that an estate go through probate, but without the authority of the court, no one will be able to access bank accounts, annuities, investment accounts and other assets of the estate. A will usually must go through probate to be enforced, but most states have simplified procedures or provided shortcuts to probate.

Assess the estate. The most important factor determining whether an estate should go through probate is the nature of the estate itself and the value of its assets. Assets held in a living trust, or the proceeds of pay-on-death accounts, such as life insurance, which go directly to a beneficiary, are not subject to administration.

Identify "small estate" laws. Each state has shortcuts around probate for estates with assets less than a certain amount. To avoid probate or qualify for special administration, an estate usually must not include real estate, must be free of creditors' claims and must total less than a certain amount.

Request special administration. Under this special administration, the court has much less influence on the estate administration and the procedure is simplified. Though probate is not avoided entirely, many of the time consuming requirements are streamlined.

Claim assets by affidavit. Once a certain amount of time elapses (30 to 40 days) and no will has been submitted for probate, certain assets, such as bank accounts, annuities, and generally anything held in the name of the decedent can be accessed by a beneficiary through the presentation of a death certificate and an affidavit. Usually a standard form for the affidavit is available from the court.

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About the Author

Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.