If you leave behind property that gets tied up in the probate process after you die, your loved ones might be in for some headaches, delays, and expenses. Many people try to avoid probate for this reason. But if your estate (the property you own at the time of your death) is on the small side, it might qualify for an expedited probate process—a shortcut. Find out whether your estate can use a simplified probate procedure. If not, you can always be proactive and take specific measures to keep your property out of probate.
What Is Probate, and Why Would You Want to Simplify the Process?
Probate is a court process that oversees the inventorying of your assets, payment of debts, and transfer of assets to your inheritors. (For a more comprehensive explanation, see What Is Probate and How Does It Work.) Because the probate process takes time—the better part of a year, usually, and up to several years in exceptional cases—having access to an easy, short version of probate can make a huge difference to your loved ones. Additionally, the faster the probate process, the fewer the court fees and the lower any probate lawyer fees and executor fees.
What Is a “Small” Estate That Qualifies for Simple Probate?
Not all states offer simplified small estate procedures, but the ones that do each define “small” differently. For example, in Florida, a summary probate procedure is available for estates that don’t exceed $75,000; in Ohio, a similar procedure is available for estates that are $35,000 or less ($100,000 or less if a surviving spouse inherits everything). Other states don’t define an upper limit, and instead ask whether the property left behind will be completely used up by family allowances (amounts that immediate family members like surviving spouses are required to receive by law), funeral expenses, and certain medical costs.
Some states also offer a small estate affidavit procedure that allows you to skip probate altogether by using a sworn statement instead (more on this below).
Find out the simplified probate procedures available in your particular state.
Is My Estate Considered “Small”?
Once you know whether your state offers summary probate procedures or small estate affidavit procedures, and what the requirements are, you’ll also need to know which property counts toward your estate.
Some types of property do not go through probate at all. In many states, this “non-probate” property is not counted toward your estate for purposes of determining whether it is small. This property includes:
- Property held in a living trust
- Some types of jointly owned property
- Bank accounts with a registered payable-on-death (POD) beneficiary
- Stocks and bonds with a registered transfer-on-death (TOD) beneficiary
- Life insurance proceeds when there is a beneficiary
- Retirement accounts when there is a beneficiary
- Vehicles registered in transfer-on-death (TOD) form (available in some states), and
- Real estate left with a transfer-on-death (TOD) or beneficiary deed (available in most states).
By way of example, in many states, even if you have $500,000 in your retirement account and a bank account worth $200,000, if you’ve named beneficiaries for those accounts, those assets will pass to your beneficiaries outside of probate. If you don’t own much else besides those accounts, you might be able to qualify for a simplified probate procedure, despite having significant assets. This illustrates precisely why many people strategize to avoid probate by owning their property in the ways listed above.
How Does a Simplified Probate Process Work?
There are two types of simplified probate procedures. Most states offer at least one, and many offer both. If you’re in a state that offers both a small estate affidavit process and a summary probate process, the requirements for each one will differ.
Small Estate Affidavits
If your estate qualifies for a small estate affidavit process, your inheritors are in luck because this is the simplest, fastest route available. They can bypass the probate court completely. Your beneficiaries need only prepare a simple statement, get the statement notarized, and give the statement and a certified copy of the death certificate to the bank or person who is currently in possession of the property. In a few states, though, only beneficiaries who are close relatives can use this procedure.
Simplified or Summary Probate
If your estate qualifies for the simplified or “summary probate” shortcut, your inheritors will technically still go through probate court, but there will be fewer steps. They can generally handle matters by mail rather than in person. These steps vary by state but often include:
- Filing a petition for summary probate with the court (usually after a waiting period of a month or two). Probate courts often have fill-in-the-blank forms you can use for this petition.
- Filing the death certificate and will, if there is one.
- Inventorying the property and obtaining appraisals of non-cash assets.
- Distributing the property to beneficiaries.
- Filing a closing statement with the court.
If your estate isn’t small enough to qualify for a simplified probate process but you’d like to be proactive about avoiding probate, you can use a reputable software program like WillMaker & Trust to create your own living trust, or you can consult an estate planning lawyer about your options.