When Can Probate Be Avoided?

by | Dec 12, 2018 | Uncategorized | 0 comments

Probate is not automatically required every time a person passes away. People who own minimal accounts and possessions can be exempt. And people who take specific steps to avoid the need for probate can also be exempted. The estates of everyone else will need to go through probate.

The first group – those with minimal possessions – consists of those who do not own any real estate and whose other assets (bank and other financial accounts, plus their personal possessions) have a total value of less than $100,000.

For this group, the process can be much faster and essentially free. It only involves the preparation and presentation of a Small Estate Affidavit by either the Executor or the heirs of the person who passed away.

The second group – those who own any real estate or whose accounts and possessions have a total value in excess of $100,000, are required to go through probate unless specific steps are taken to avoid that necessity.

The most common method of avoiding probate is the establishment of a Family Trust. This can be done by an unmarried person or by a married couple. If a married couple establishes the trust, it will actually avoid the probate for both of the spouses, thereby doubling the benefit of the trust.

While the utilization of a Family Trust is considered the “global solution” to the probate problem, there are potentially other piecemeal solutions that involve various forms of ownership for each asset that will allow those specific assets to pass without probate. But the piecemeal approach is particularly prone to lapses in which one or more assets are missed creating the need for probate despite the successful avoiding of probate for certain assets.

In the end, for those who are committed to avoiding probate, the establishment of a Family Trust is almost always the most effective way of accomplishing that goal.


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Daniel Patchin

Benjamin Monaghan, Attorney

Benjamin Monaghan