Probate court is the process by which the state inventories, administers, and distributes the estate of a deceased person. An estate planning attorney can advise you on how to help your loved ones avoid this process.
There are many reasons why you may want to avoid probate. Probate is a lengthy process for your loved ones to undertake so soon after your death, and it can last months or even years. Probate also costs your heirs and beneficiaries a lot in court and attorney fees, which can cut into the benefits you hoped to leave for them.
However, not all estates pass through probate. Most states in the U.S. have alternate options for estates that are smaller, which can save loved ones time and money.
When Small Estates Avoid Probate Court
Depending on the state, an estate may avoid probate court because it is valued under a specific amount. The two main ways an estate may avoid full formal probate are through a small estate affidavit or through simplified probate. Some states have both options for estates, while others only have one.
Small Estate Affidavit
A small estate affidavit is a document that enables an estate to skip probate completely. Whether an estate qualifies for this option depends on its value of probatable property, if there are debts that must be settled, and other factors. Not all states have small estate affidavits, and those that do each have different requirements for an estate’s qualifications.
The value limit of the estate that qualifies for these options varies anywhere from $25,000 to $170,000. Other requirements may include the lack of a personal representative and specific values for personal and real property. Because the value requirements are typically on probatable property, an estate where the majority of its property is in trusts may be able to use a small estate affidavit for the remainder of the property.
Some states require heirs to file this affidavit with the court before presenting it to the estate holder, while others only require heirs to sign the affidavit under oath and present it to the holder of the estate. The holder may be an individual or an institution, which then releases the assets in the estate when presented with the affidavit and death certificate.
Simplified Probate Procedures
Other states may have a simplified probate process, sometimes called summary administration, instead of or in addition to a small estate affidavit. The simplified probate process is still probate but with significantly less supervision by the probate court and fewer requirements. It may not avoid probate completely, but it can reduce the costs and time required of family members.
Heirs must also request this process, and the requirements vary from state to state. Some states have subjective considerations for the court rather than set values. Others require a set value, no known creditors, consent from all heirs, or other requirements.
Planning Ahead to Avoid Probate Court
A small estate affidavit or a simplified probate has several benefits for heirs, but individuals can also plan ahead. Leaving behind a small estate is not the only option for those who want to keep their estate from the public, expensive, and lengthy process of probate. Proper estate planning can keep your estate out of probate court. Estate planning techniques include titling assets jointly under a right of survivorship and naming beneficiaries under specific accounts.
One of the most effective ways to keep your estate out of probate court is through revocable trusts. A revocable trust gives you complete control over the assets while you are alive, and then transfers ownership of the assets to your trustee when you die. Because of this transfer, the state never has jurisdiction over the assets in the trust, keeping them out of probate. It also keeps the estate and the transfer of its assets private.
FAQs
Q: Which Assets Will Avoid Probate?
A: The assets that enter probate are those owned solely by you and do not have a listed beneficiary. Assets in a trust, revocable or irrevocable, will avoid probate, as will accounts, properties, or other assets that are held jointly. Accounts with a listed beneficiary will immediately transfer to their beneficiary, such as investment accounts, insurance policies, and bank accounts. Accounts or properties with transfer-on-death or pay-on-death orders will also be transferred, including vehicles.
Q: Do All Wills Go Through Probate?
A: Not all wills go through probate. If a will represents an estate valued under a certain amount, the estate may qualify for a simplified probate process or a small estate affidavit. However, all estates and wills that are over that value go through probate. The most effective way to keep your estate out of probate court is to plan your estate effectively, such as placing your assets in a trust. Trusts are legal entities and keep your estate and its transfer private.
Q: What Qualifies for a Small Estate Affidavit in Nebraska?
A: To qualify for a small estate affidavit in Nebraska, an estate must have a value of probatable real estate property less than $50,000 and a value of probatable personal property less than $100,000.
The surviving family members or the representative of the deceased’s estate must file for the small estate affidavit, as the process is not automatic. It must be filed within 30 days of the individual’s death. If the estate meets the qualifications, it will avoid the probate process entirely. This saves family members and heirs significant time and money.
Q: How Much Does an Estate Have to Be Worth to Go to Probate in Kansas?
A: Kansas has a small estate affidavit option that heirs can prepare if the estate’s value is less than $75,000. Rather than being filed with the court, this affidavit is provided to the holder of the estate’s assets, along with the certificate of death, to allow the release of the assets. This enables these assets to avoid the probate process.
Kansas also has a simplified probate, which may be allowed by the court based on several factors. These include the estate’s size, the cost of probate, the wishes of the estate’s heirs, the number of debts, and other factors.
Effective Estate Planning
For straightforward and supportive legal advice about estate planning or small estate affidavits in your state, contact Stange Law Firm. Our estate planning attorneys can help determine your estate planning goals and craft a plan that supports your wishes.
