If there\u2019s a house involved, it\u2019s almost a guarantee that you\u2019ll have to go through probate<\/a>. Ignore the rules and a mad beneficiary could lob a lawsuit at you down the road<\/a> for what the will promised them and they failed to receive, so it\u2019s best to play by the rules. With that in mind, let\u2019s review the possible scenarios that require probate versus those that may allow you to avoid it.<\/p>\n According to the\u00a0American Bar Association, \u201cprobate is the formal legal process<\/a> that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries.\u201d<\/p>\n Rob Kittle<\/a>, a top-selling agent in Fort Collins, Colorado and explains the process in plain terms: \u201cProbate is when an estate has assets that need to be legally settled and distributed. There\u2019s not always going to be a need for probate. But almost 100% of the time, if there\u2019s real property or real estate involved, it\u2019ll go to probate unless steps have been taken to avoid it.\u201d<\/p>\n Some people mistakenly believe that probate only happens when there\u2019s no heirs, no will, or heirs dispute the existing will. Others believe that every estate requires probate\u2014especially if there is<\/b> a will.<\/p>\n The truth actually depends both on the state probate laws<\/a> and what steps your loved one took to avoid probate before they passed away.<\/p>\n\n\n\n\n\n Selling your house soon? Connect with a top agent near you to get an expert opinion on how much your house will sell for, what to fix before listing, and the latest local housing market trends.<\/p>\n \n If the estate requires probate, then it\u2019s illegal to do anything with the assets\u2014even something as simple as cleaning the house\u2014until you\u2019ve been legally appointed as the executor or personal representative<\/a> for the estate by the probate court.<\/p>\n Plus, you as the personal representative may face fines<\/a> or worse for failing to file within the required timeframe\u2014which is typically 10 to 90 days from the date of death<\/a>.<\/p>\n That\u2019s why it\u2019s wise to file the will with the probate court as soon as possible<\/a>, even if you think the estate won\u2019t need to go through probate.<\/p>\n Generally speaking, there are four reasons why an estate is required to go through the probate process:<\/p>\n \u201cIf you don\u2019t have a will, your estate will wind up in probate.\u201d<\/p>\n This all-too-common warning is generally true.<\/p>\n No-will estates usually fall under intestate succession laws<\/a> which can vary from state to state<\/a>. So, when there is no valid will to name an estate executor<\/a>, in most states and cases it\u2019ll be necessary for the probate courts to get involved in order to sort out the assets.<\/p>\n However, probate isn\u2019t always required if there\u2019s no will<\/b>\u2014especially for small estates<\/a>.<\/p>\n The probate process is complex<\/a>\u2014which is why some states have adopted laws to simplify or remove probate requirements<\/a> for small or low-value estates.<\/p>\n For example, estates in California<\/a> that are valued at $150,000 or less may qualify for a simplified probate process, or even be eligible to skip it altogether.<\/p>\n In some states, there are even ways for larger estates to qualify for small estate simplifications<\/a>.<\/p>\n However, in other states like Alabama, Connecticut, and Delaware, estates that include a house cannot qualify for skipping or simplifying probate.<\/p>\n Since a home and it\u2019s current market value can influence whether or not an estate requires probate, it\u2019s wise to consult with an experienced real estate agent<\/a> with probate experience<\/a> before starting proceedings through a probate attorney.<\/p>\n Just because someone\u2019s made out a will doesn\u2019t mean they did it right.<\/p>\n Any number of problems can arise to trigger probate even if there is an existing will that attempted to avoid the process.<\/p>\n It could be something as simple as the decedent failing to notarize the will<\/a> or attach a self-proving affidavit<\/a>. Or perhaps the decedent moved and bought a house in a new state without updating their will, so the existing one doesn\u2019t meet the new state\u2019s probate laws.<\/p>\n Or maybe it\u2019s a worst-case scenario where there are multiple wills, or the beneficiaries decide to contest the will<\/a>.<\/p>\n In any of these scenarios (and others), probate becomes necessary to deal with the problems of an incorrect, invalid, or contested will.<\/p>\n So, if you\u2019re someone\u2019s beneficiary, don\u2019t wait until your loved one passes away when it\u2019s too late to fix any probate-triggering problems that might arise. Sit down with them and their attorney to make sure that the will meets state standards<\/a>, all the proper steps to avoid probate have been taken, and to learn what you\u2019ll need to do when the time comes to validate the will.<\/p>\n Have you ever watched one of those movies where the main character suddenly inherits a house or money from an unknown distant relative?<\/p>\n Well, it may not make for riveting footage, but in order for that to have happened, the estate would\u2019ve had to go through probate.<\/p>\n You see, when a single or widowed homeowner without any surviving children dies, someone has to decide what happens to the house\u2014and that\u2019s typically going to be the probate courts.<\/p>\n True, prior to passing away, that homeowner could draw up a will that appoints an executor and names unrelated friends or charities as the beneficiaries to the profits from the home sale. However, the estate would still likely need to go through probate to sell the house and distribute the assets.<\/p>\n However, if there is no will or it fails to name any beneficiaries, then it\u2019s up to the probate court to decide what happens to the estate. They\u2019ll either locate distant relatives not named in the will<\/a> to inherit the assets of the estate, or if no relatives can be found, the assets will be appropriated by the state after any remaining mortgage balance<\/a> and all other debts against the estate have been paid off.<\/p>\n An estate may require probate simply to carry out the terms and distribute the estate\u2014even if there is a valid will<\/a>.<\/p>\n Sometimes it becomes necessary when the decedent has debts and creditors<\/a> that must be paid out of the estate before beneficiaries take ownership of the assets.<\/p>\n In other cases, where the decedent retains sole ownership of assets<\/a>\u2014like the house\u2014probate simply facilitates the necessary legal procedure that transfers ownership of that property to the beneficiary.<\/p>\n Unfortunately, probate can be a lengthy<\/a> and costly<\/a> process simply to execute the terms of an uncontested will that will simply transfer all assets to named beneficiaries.<\/p>\n That\u2019s why, instead of wasting estate assets on things like probate lawyer fees<\/a> or court costs, many homeowners take steps to avoid probate<\/a>.<\/p>\n Estates that are small in size and value aren\u2019t the only ones that can skip the probate process\u2014if the decedent makes estate planning arrangements<\/a> to avoid the painful process before they pass away.<\/p>\n These are the three main ways<\/a> for estates of any size to avoid probate:<\/p>\n One of the most common and recommended ways to transfer real estate to your beneficiaries without the help of probate court is with a living trust<\/a>.<\/p>\n A living trust functions much like a will<\/a> in that it spells out your wishes as to the distribution of your assets. A living trust lets you name yourself as the trustee to manage the trust while you\u2019re still living.<\/p>\n You\u2019re also able to appoint a successor who\u2019ll have the right to manage and distribute the trust as soon as you pass away\u2014without waiting to be appointed as an executor or personal representative by the probate court.<\/p>\n By transferring your real estate into a living trust, your successor trustee can transfer ownership to the beneficiaries without going through the probate court\u2014which means the ownership transfer can take weeks instead of months or years<\/a> as it might in probate.<\/p>\n Avoiding probate\u2014especially where property is concerned\u2014is the big selling point for a living trust. However, it\u2019s important to note that the American Bar Association says that in most cases a living trust can’t completely avoid probate<\/a>.<\/p>\n The reasons why and the likelihood of probate still being necessary in a living trust scenario vary by state. So the best way to avoid it if you can is to consult with a probate lawyer before setting up your living trust.<\/p>\n A living trust isn\u2019t needed when two spouses own a home together in joint tenancy<\/a>.<\/p>\n \u201cIf a couple is holding a property as joint tenants and one spouse passes away, then it avoids probate because they have the rights of survivorship,\u201d explains Kittle. \u201cThe surviving tenant of that joint tenancy gets the property so it would not go to probate.\u201d<\/p>\n While joint tenancy is the most common term for this type of property inheritance, it\u2019s not the only one. Some states refer to this or similar arrangements as tenants by entirety<\/a>, community property<\/a>, or community property with rights of survivorship<\/a>.<\/p>\n Not only do different states have varying terms for this type of marital property ownership transfer, even states that use the same terminology have different regulations and requirements for it that may or may not require probate.<\/p>\n For example, in some states you may have a choice between tenancy by entirety or community property with survivorship.<\/a>\u00a0So it\u2019s best to consult with an estate planner or probate lawyer to make the right choice for you out of all available options.<\/p>\n \u201cSimilar to joint tenancy, if both parents pass away and there’s a beneficiary deed in place, the property would then transfer to their children and avoid probate,\u201d explains Kittle.<\/p>\n The beneficiary deed<\/a>, also known as the transfer on death deed<\/a> (TOD), is less common than other steps taken to avoid probate. This is in part because only certain states allow transfer on death deeds<\/a>.<\/p>\n Instead of being transferred through a process like probate, or a trust, the TOD works just like it sounds\u2014it\u2019s a deed that automatically transfers ownership once the asset owner passes away.<\/p>\n When these deeds are used, it’s often to transfer ownership of financial accounts<\/a>, however some states do permit them to transfer real estate ownership.<\/p>\n However, even if your state allows TODs for your in-state residence\u2014you may not be able to use a TOD on property located in other states.<\/p>\n When you own property in multiple states you need to make arrangements for transferring ownership for each property based in each state\u2019s probate laws.<\/p>\n If you don\u2019t make arrangements appropriate for each state, your heirs won\u2019t just be facing regular probate\u2014they\u2019ll have to go through ancillary probate in each state<\/a>.<\/p>\n Figuring out whether or not an estate you\u2019re inheriting needs to go through\u00a0the probate process<\/a> isn\u2019t something to be taken lightly\u2014especially when there\u2019s an asset as sizable as a home involved.<\/p>\n While there\u2019s no simple answer to this question, the good news is that you can take steps to help your heirs avoid it with help from an estate planner, a probate attorney, or an agent with probate experience<\/a>.<\/p>\n\n\n\n\n\n We analyze millions of home sales to find real estate agents that sell homes faster and for more money. It takes just two minutes to match you with your personalized recommendations.<\/p>\n \n Let’s begin with the basics: What is probate?<\/h2>\n
![\"homelight](\"https:\/\/www.homelight.com\/blog\/wp-content\/themes\/ccprototypev5\/images\/logo-small-cta.png\"){kind=logo}
\n <\/div>\n \n Step one: Talk to an expert!<\/h3>\n
Put everything on pause with the house until you\u2019ve figured out probate<\/h2>\n
When is probate 100% necessary?<\/h2>\n
1. When there is no will<\/h3>\n
2. When there are problems with existing will<\/h3>\n
3. When there are no beneficiaries<\/h3>\n
4. When it\u2019s needed to carry out the valid will<\/h3>\n
When (and how) you can avoid probate<\/h2>\n
1. With a living trust<\/h3>\n
2. When there\u2019s joint tenancy in place<\/h3>\n
3. When your state allows for a beneficiary deed (aka Transfer on Death deed)<\/h3>\n
Will my estate need to go through probate?<\/h2>\n
\n <\/div>\n \n Find a top real estate agent near you<\/h3>\n