Is Probate Necessary?

Jonathan Barlow Probate Attorney

Jonathan Barlow, Probate Attorney

The question that I am asked most frequently when someone has lost a loved one is whether probate is necessary. To answer this question, I find it easiest to make three columns into which we place the deceased individual’s assets:

  • the first column is for assets that are owned by only the deceased individual with no joint owner and no one named as the beneficiary of the asset;
  • the second column is for assets that have a joint owner or designated beneficiary;
  • the third column is used if your loved one had a trust to identify any assets that are owned by the trust.

All assets that fall in the first column generally require some form of probate proceeding. Depending on the total value of these assets, the probate process may be quick or may require more thorough probate court involvement. With very small estates, a simple affidavit may be used to transfer the assets without probate court involvement. It is important to note that even if your loved one had a trust, if he or she had any assets that fall in this first column, probate is still necessary for those assets. All other assets that fall in the second or third columns do not require any probate process before the assets can be transferred.

Examples

Consider the following situation, which is typical for many people. At the time of James’s death, he owned a house with his daughter, Gwen, as joint tenants, checking and savings accounts with only his name on the accounts, a car with only his name on the car title, and life insurance with his three children named as the beneficiaries of the life insurance. Because Gwen is on the deed to the house as joint tenant, she becomes the sole owner of the house automatically upon James’s death without need for probate court. Similarly, the three children will receive the life insurance proceeds directly from the life insurance company without probate court involvement. However, in order for the checking and savings accounts and the car to be transferred to James’s next-of-kin, a probate proceeding will be necessary.

Even if no assets fall in the first column requiring probate, there may be special circumstances that require filing a probate proceeding. Such circumstances often include the need to investigate assets to determine into which column the asset might fall or the need to pursue claims on behalf of the probate estate.

We Can Help.

Our probate attorneys are trained and have extensive experience in helping families and individuals who have lost a loved one to perform this analysis and determine whether probate is necessary. You are most welcome to contact us and have a free discussion about your situation.