When Is Probate Required?

Probate is usually required when there's no will, the will needs validating or there are no named beneficiaries.
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In general, probate is required in three scenarios: to validate a deceased person’s will, to determine how to distribute property of people who die without a will or to determine how to distribute certain assets for which the deceased person didn't name a beneficiary.

Additionally, although specific probate laws vary by state, probate is generally required if all or any of a deceased person’s assets were in their name alone.

What is probate?

Probate is a legal process for validating a will and distributing the property and assets of someone who died. A probate court also formally appoints the estate’s executor or administrator, who receives legal authority to use the estate’s funds to pay the deceased person’s debts and distribute assets to beneficiaries according to the will. Many states have streamlined or simplified probate processes for certain types of estates, reducing time and expense involved

American Bar Association. The Probate Process. Accessed Aug 25, 2023.
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When is probate required?

State laws vary, but here are some situations that typically require probate:

  • The deceased person designated a beneficiary on a bank or investment account (such as a retirement account), but the beneficiary died.

  • The court needs to determine if a will is valid, or someone is contesting a will.

  • The deceased person owes creditors.

  • The deceased person needs to file a tax return or pay outstanding taxes.

  • The deceased person owned real estate or other assets (such as bank accounts, stocks and bonds) in their name only

    Commonwealth of Massachusetts. Find out when it’s necessary to probate an estate. Accessed Aug 25, 2023.
    .

When is it OK to skip probate?

These specific types of assets typically don’t have to go through probate:

  • Joint tenant accounts with right of survivorship. When two or more people own an asset together (such as real estate, a car or a bank account) and one owner dies, the deceased person’s ownership usually automatically goes to the surviving owner with no need for probate

    Cornell Law School Legal Information Institute. Right of Survivorship. Accessed Aug 25, 2023.
    .

  • Revocable living trusts. These are sometimes called inter vivos trusts. A person (“the settlor”) sets up the trust during their lifetime and maintains control of the assets while alive. When they die, the assets automatically pass to the beneficiaries without going through probate

    Cornell Law School Legal Information Institute. Revocable Living Trust. Accessed Aug 25, 2023.
    .

🤓Nerdy Tip

Be sure to contact the carrier or financial institution and ensure that the beneficiaries are named on the account. Simply mentioning intended beneficiaries in your will isn’t the same as naming them on the accounts.

  • Life insurance policies with a beneficiary designation. If you designate a beneficiary on your life insurance policy, the beneficiary should receive the proceeds without having to go through the probate process after you die.

  • Retirement accounts with a beneficiary designation. These may include 401(k) plans, pension plans or individual retirement accounts (IRAs). If you designated a beneficiary on these accounts, the beneficiaries should receive the proceeds without having to go through probate. 

  • Annuities with a beneficiary designation. If you designated a beneficiary on an annuity, the funds typically transfer to the beneficiary as soon as the carrier receives your death certificate. If you don’t name a beneficiary on the account, that asset may have to go through probate when you die.

  • Payable on death (POD) accounts. If you add a "payable on death" designation to a bank account, the funds typically transfer to the beneficiaries named on the account when they present your death certificate to the bank. (While you’re alive, your beneficiaries have no access to or control over these accounts.)

    Cornell Law School Legal Information Institute. Payable-on-Death Designation. Accessed Aug 25, 2023.

  • Transfer on death (TOD) properties. Some states allow you to get a transfer on death deed for real estate or vehicles that you want a person (or persons) or organization to inherit without going through probate. (If your state permits this type of deed, your beneficiaries won’t have access to or control of the property while you’re alive.)

Frequently asked questions

With a few exceptions, the estate’s assets can’t legally transfer to anyone. Additionally, beneficiaries might be able to sue the executor or ask the state to prosecute the executor if they believe the executor personally gained from hiding the will.

Time limits vary widely by state. For example, in Illinois, the executor needs to file the will with the court within 30 days after learning of the death; Florida requires the executor to file within 10 days. Texas allows four years for the executor to file, and New York has no filing deadline at all.

Assets placed in a living trust typically avoid probate. Because of the cost and complexity of trusts — as well as the potential tax consequences involved — consult an estate planning lawyer to see if this is the best option for you and your loved ones.

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