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Kirtland & Seal, L.L.C.

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Don’t assume an estate must go through probate

On Behalf of | Oct 4, 2018 | Firm News, Probate

Probate courts oversee the administration of a deceased individual’s estate as assets are passed on to that person’s heirs — but it isn’t always a necessary process.

Whether probate is necessary often depends on the estate itself. Generally speaking, small estates and estates where arrangements have been made to pass the assets on by other means don’t have to go through probate.

If you’re trying to determine if an estate is going to have to go through probate, you can usually tell by looking at the deceased’s assets. If everything of significant value is already transferred to a beneficiary or heir, the estate probably doesn’t need to go to probate.

For example, imagine that the deceased left a house and an insurance policy. Aside from his or her personal effects and a small bank account, those were the only things of value that he or she owned. If the deceased had a spouse, the spouse likely jointly owned the bank account and the home — both of which would pass automatically to the co-owner’s possession. Life insurance policies are paid directly to the listed beneficiaries, so they would not ordinarily go through probate anyhow. In a situation like that, probate wouldn’t be necessary.

Naturally, those aren’t the only ways that assets can be transferred to an heir. Bank accounts, retirement accounts and other funds are often set up so that they automatically go to a designated beneficiary upon the owner’s death. Usually, the beneficiary only has to provide a death certificate to complete the process.

Even estates of more significant means may not have to go through probate if all of the major assets are already handled in some way. For example, many people fund revocable trusts while they are still alive, partially to make sure that their assets are protected from creditors and partially to make it possible for their estate to avoid the probate process.

There are some cases where it’s wisest to go through probate even when it isn’t technically necessary. If there are disagreements about who is the proper beneficiary for an asset or significant claims from creditors, it might be an advisable step. If you’re uncertain, an experienced probate attorney can review the situation and help you understand your choices. When necessary, they can also help you through the probate process.