Planning Your Legacy

Can You Avoid Probate? Streamlining the Probate Process for Small Estates

  • 3 Minute Read
  • Shares

The legal term probate is generally defined as "the legal process of administering the estate of a deceased person” — and usually not something you want your loved ones to go through after you’re gone. Here are some steps to take to help streamline (or possibly even avoid) a lengthy and often costly probate process.

What probate is all about

The goal of probate is to determine who should get the property, assets or inheritance a deceased person has left behind, and usually involves:

Proving in court that a deceased person's will is valid, if one exists (usually a routine matter).
Identifying and inventorying the deceased person's property.
Having certain property appraised.
Paying remaining debts and taxes.
Distributing the remaining property as the will (or by state law, if there's no will) directs.

Two ways to streamline the probate process

One question a lot of people ask is, “What’s the maximum size an estate can be to avoid probate?” While the laws on how much the estate can be worth vary by state, if your estate is relatively small you may not have to worry about going through probate.

That’s because most states have streamlined probate for smaller or uncomplicated estates — with or without a will. In these cases, settling the estate can be a quick and relatively painless experience. There are two basic kinds of probate shortcuts for small estates:

Claiming property with affidavits

If the total value of all the assets (except real estate) left behind is less than a certain amount, the estate's inheritors may be able to skip probate entirely. The exact amount depends on state law, which varies considerably.

If the estate qualifies, an inheritor can prepare a short document stating that he or she is entitled to a certain item of property under a will or state law. This paper, signed under oath, is called an affidavit. When the person or institution holding the property (such as a bank where the deceased had an account) receives the affidavit and a copy of the death certificate, it releases the money or other property.

Simplified court procedures

Another option for small estates is a quicker, simpler version of probate. The probate court is still involved, but it exerts far less control over the settling of the estate. In many states, these procedures are straightforward enough to handle without a lawyer, so they save money as well as time.

Keep in mind that each state defines the term “small estate” differently. Because of the way the laws are written, however, many large estates, worth hundreds of thousands of dollars are eligible for special transfer procedures that speed property to inheritors.

Different ways to be prepared

It's usually in your best interests (and the interest of your beneficiaries as well) for your estate to avoid probate altogether. If that’s not possible you can take steps to reduce the amount of property that will be subject to probate, which will reduce fees and ensure that your beneficiaries get some of their inheritance faster. Here are some steps you can take to ensure that all or some of your estate avoids probate — and make things easier for the loved ones you leave behind:

Have the right estate planning documents in place, most notably a revocable trust, which specifies a formal structure for property distribution.
Keep track of your property and assets and update your trust anytime something changes.
Make sure your assets are either in the name of your revocable trust or that they have proper beneficiary designations.
Tell the right parties about all of the documents discussed above and where they are located, such as a safe deposit box, home safe or stored electronically.
Seek the assistance of an attorney who practices in probate and trust law.

What’s the biggest advantage of taking these proactive steps? Ultimately it’s preventing your family and friends from going through time-consuming court proceedings and costly legal fees during a difficult and emotional time in their lives.

Resources

All Learning Center Topics

View all Learning Center topics.

Legal Glossary

Find definitions of legal terms.