When Probate is Required

When Probate is Required

  • July 7, 2021

What is probate? And do you need probate if there's a will.

Justin Randall: So probate is really the process in which somebody's estate is dealt with after they're gone. It’s the court process where you know, creditors are notified, and the will is filed with probate. So, to answer your question, yes, if you have a will, you do still need to go through probate. And the reason for this is wills only actually direct assets that are going through probate. The biggest misconception is that if I have a will, I don't need to go through probate. Everything is going to just pass to my family the way I want it to, but they only instruct the probate court on how to divide up the assets.

Does everyone have to go through probate? Or are there certain circumstances where this applies?

Justin Randall: Not everyone has to go through probate. A lot of what depends on whether something will go through probate or won't depends on whether or not somebody may have a revocable trust, for example, or if they have beneficiary designations on accounts. It really depends on how those assets are titled or are beneficiary designated whether or not it will actually go through probate.

Is there a dollar amount estates need to reach to require probate?

Justin Randall: There is a minimum that the probate court has. If you're below this amount, you can transfer your assets, what they call a transfer by affidavit, which means that it just passes to the beneficiary. And that is if the total size of someone's estate is under $50,000. So, not asset by asset, but total.

Is it a good idea to try to avoid probate or can it be beneficial?

Justin Randall: So it can be beneficial, it really depends on the purpose somebody might be creating their estate plan for. So one really common reason to go through probate is that's where you have to name guardians in a will. So, in order for those guardians for minor children to be appointed and approved that that will has to be probated. And occasionally, there are certain types of plans that are set up exclusively by a will. And then you would really want to go through probate. But if you're not using a will for any of those purposes, a lot of times it is beneficial to avoid it.

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