Can I avoid probate?

5 min read

Understanding when you can bypass full probate

  • The full probate process can sometimes be avoided if the total value of assets in the estate falls below a minimum value as determined by state law.

  • Depending on the state, some assets will not be counted in the total, such as assets that pass to a spouse, or assets owned in another state.

  • Your loved one may have made arrangements before their passing to avoid probate.

  • Consider hiring an estate lawyer to help you understand what type of probate you can expect for your loved one's estate.

Losing someone you love is difficult, and it can be made even more challenging by legal matters like probate. If you’ve been dealing with a loved one’s estate, you have probably heard that you can or should avoid probate, but what exactly is it? And how do you know if you can move forward without it?

What is probate?

Probate is a legal process that a person’s property goes through after they have passed away. It involves validating the will in court and taking the required steps to distribute the property. However, it is often not necessary for smaller estates to enter into this complicated court-based probate procedure—which is why you may have heard you can avoid it. While you are always legally required to file your loved one’s will with the court, there are cases when the full probate process can be avoided.

In general, distributing the assets associated with the estate is less arduous if your loved one prepared for this before they died. If they did the work of writing a will, creating living trusts, and assigning joint ownership to certain assets, it will make the process much more straightforward. 

If there are trusts set up that take care of all or most of the person’s assets, you can almost always simplify the probate process (or even skip it altogether), even with larger estates. Moreover, smaller estates may be able to avoid full probate, depending on thresholds set by each state. This will help to ease some of your burden during an already demanding time, in both practical and emotional ways.

Do you want to try to steer clear of full probate?

In most cases, there will be little to no conflict around the person’s will, and most of their property can be passed to the beneficiaries through simple transfer procedures.  

Entering into probate can be both lengthy and expensive, which is why people tend to try to avoid it. It involves court appearances, meetings with lawyers, and lots of paperwork. It is also rarely good for the estate’s beneficiaries, because lawyers' fees and court fees are paid out of the estate’s total value. All of this can be emotionally draining during an already intense time in your and your loved ones’ lives. 

In addition, it is much easier to work through your grief without probate looming. If it can be avoided, you can instead work with family and other beneficiaries to share the responsibility of paying outstanding debts, filing tax returns, and distributing property. 

Understanding whether you need full probate

There are a few factors that determine whether full probate is necessary for your loved one’s estate. Knowing the basics up front will help you prepare and ease any anxiety you might be feeling.

If you are named the executor of a larger estate, it will give you peace of mind to seek the advice of a lawyer before filing the will, to make sure you are covering all the bases. 

In most states, a set amount of property can be passed on to beneficiaries without full probate.

Anything of value that’s included in the will and not designated to pass to new owners outside of the will (such as through living trusts, transfers, etc.) may need to go through probate, depending on the total value of those assets and the state in which you’re filing the will.

If there is no will, any of your loved one’s solely-owned assets that do not pass directly to named beneficiaries are part of their estate, and the same probate rules apply.

The total assets of an estate include all property such as money, real estate, vehicles, and all other belongings, minus all outstanding debts. In most states, a set amount of property can be passed on to beneficiaries without full probate. This “trigger threshold” for assets to pass free of probate varies by state law. It can be as low as $10,000 or as high as $275,000.

There may also be certain other shortcuts that will allow you to avoid full probate, depending on the state. For example, in some states, certain kinds of assets may not have to be counted in the total value, such as property owned in another state, or registered motor vehicles. In addition, in many states, surviving spouses can avoid probate no matter how large the estate is.

Between all of these exceptions, the majority of estates are able to avoid full probate. You should thus be able to estimate the value, file the will, and begin the process of closing the estate. In some cases and states, this will involve a simplified probate procedure, such as allowing the beneficiaries to claim property with affidavits. 

It will likely save you time, money, and emotional energy to figure out whether your state’s small estate laws apply to your situation. 

When you do need to go through the full probate process

If the property in the will is above your state’s threshold, or if there are complications like large debts or cash bequests for valuables, then you might need to enter the full probate process. It is almost always worthwhile to consult with a lawyer in the state where your loved one lived to be certain you make the right decision. 

If you do need to enter probate and you are the executor of the estate, you’ll want to be prepared, both practically and emotionally. The process can be long—taking over a year in some cases—and you’ll need to have a good handle on all of the person’s assets

Going through probate while grieving 

The task of handling probate proceedings while you’re feeling the effects of losing someone is a real challenge. It is not easy to stay organized or on top of little tasks while you’re grieving. Take it slow; remember that this part of the process is a marathon, not a sprint. If you’re not feeling up to detailed work today, put it aside and focus on other ways of remembering your loved one. And don’t hesitate to enlist the help of family and friends.

If you decide to hire a lawyer, he or she can help look over documents, fill out forms, keep track of deadlines, and even make routine court appearances. Although it will take money out of the estate, it is usually worth it, particularly for estates with different types of valuable property or with significant tax liabilities. For complicated estates, this can be a huge weight off your shoulders and give you the space you need to grieve. 

Whether your loved one has put you in charge of their estate or you’ve chosen to step into that role in a time of need, you’re going to be faced with many important decisions. Remember that these difficult tasks are themselves a way of honoring your loved one, and make sure to take care of yourself in the process ●