When is Probate Required?

Absent a contract or unusual circumstances, no one can be compelled to act as an executor (or estate trustee). For example, just because a deceased person named the King of England as the executor of their Will, this does not mean that His Majesty must accept the job.

The estate administration process can be both expensive and time consuming. Depending on an executor’s (or estate trustee’s) situation and the size and nature of the estate, it may not be in an executor’s best interests to go through the probate process. An individual can renounce as executor so long as they have not already started to act.  Alternatively, an executor might also be able to administer an estate without probate, saving fees and potentially taxes.  While the lawyers at Katzman Estate Law are eager to file probate applications, on our initial no-fee call, we check first to see if probate can be avoided and ask questions to determine if applying for probate is in the best interests of our clients.  Potential executors need accurate, pragmatic advice before they act.      

This article will discuss several factors to consider when applying for probate, as well as whether a will should be probated.

When Would an Estate be Able to Avoid Probate?

There is little to no money

If, after the payment of the deceased’s debts, there will be little to no money available for distribution to an estate’s beneficiaries, a potential executor should strongly consider declining to act, avoiding the probate process altogether.  An executor who is not careful may find themselves working for the estate’s creditors for little to no pay.

All property jointly held with the executor

An executor might not need probate because they already control the estate’s assets. 

If a deceased person held their assets jointly with their executor or someone willing to transfer that property to the executor, the estate might not have assets that need to be probated.  In addition to proving that a specific Will is applicable to an estate or proving that a person died intestate, probate serves as evidence that a specific executor or group of executors is in charge of an estate. This usually allows an executor to compel banks to release funds or authorizes them to transfer property.  If an executor is already in possession of the funds and they do not need probate to sell or transfer property, an executor may be able to administer an estate without the need to apply for probate.

All property jointly held with survivor or sole beneficiary

An estate may be empty because of joint accounts or beneficially designated assets including life insurance and registered investment accounts. There is typically no need to obtain probate for an estate with no assets.   

Sometimes, a deceased person’s assets, including bank accounts and real property like houses, are all held jointly with individuals who are supposed to keep the assets after the death of the deceased.  This is often the case with spouses.  In this situation, probate is generally not required as the survivor on the bank account or real property already has the assets.          

Jointly held property or bank accounts can sometimes be problematic when the survivor was supposed to hold the asset in trust for an estate. Click here for more information on jointly held property and who ultimately gets to keep it.

Litigation and near misses

If an estate is subject to litigation, probate may still be advisable even if it is not strictly required.  In particular, the grant of probate can start a limitation period for dependent support claims and may therefore create a tactical advantage. 

If even one estate asset or account is not held jointly, probate may be required to access it.  For example, if a deceased person held a $1 Million house jointly with their husband and held two accounts containing $250,000 each jointly with that same husband, they may still need to apply for probate in order to access a third account held solely in the name of the deceased for $50,000.   

Consult a probate lawyer for more information as to whether probate might be useful or how to avoid probate. Sometimes, banks release modest sums of money without the need to apply for probate from solely held accounts, so it can be avoided that way.    

When Should I Apply for Probate?

A potential executor may determine whether probate is required for the estate and should apply for probate when there are sufficient assets to make administering the estate worth their while.  If an executor is also a beneficiary of an estate, they have an interest in seeing the estate move forward and likely also have an interest in keeping control of the estate.  If an executor is not a beneficiary, they should consider whether the compensation they may be entitled to is worth the work required to administer an estate.  You can learn all about estate compensation here.

What if I am Still Unsure About Whether a Will Should be Probated?