Is Probate Necessary If There Is a Will? The Truth Might Surprise You

Have you ever thought about what will happen to your things when you die? Maybe you made a will and thought that would be enough. However, just because you have a will doesn’t mean that your family can skip the probate process. I was shocked when I first heard this, and I bet you are too!

There are a lot of families at our law firm who don’t know if they need to go through probate when there is already a will. I’m going to explain wills and probate in simple terms today so you can know what your family might have to deal with in the future.

What Even Is Probate Anyway?

Before we start, let’s make sure we understand what probate is. Probate is basically a court-supervised process that handles:

• Validating a will (making sure it’s legit)
• Appointing an executor to manage the estate
• Identifying all the deceased person’s assets
• Paying off any debts and taxes
• Distributing what’s left to the rightful heirs

It’s kinda like having a referee make sure everyone plays by the rules after someone passes away. Sometimes that’s helpful, but other times it can be a massive headache for families.

So, Do All Wills Require Probate?

The short answer is No, not all wills need to go through probate

Surprised? Most people are! There’s a common misconception that having a will automatically triggers probate or that having a will means you can avoid probate altogether Neither is completely true

Whether probate is necessary depends on several factors:

1. The types of property you own
2. How that property is owned
3. The state where you live
4. The total value of your estate
5. Whether there are beneficiary designations

Let’s look at when probate IS typically required and when it CAN be avoided.

When Probate IS Usually Required

Even with a perfectly valid will in place, probate is typically necessary in these situations:

Think about John, one of our clients. He had a detailed will, but his house was only in his name and didn’t have a transfer-on-death deed. Even though his wishes were made clear in his will, his family still had to go through probate to give the house to his children. It took almost 18 months and cost a lot of money in legal fees.

When Probate Can Be Avoided (Even With a Will)

Here’s the good news – there are several situations where a will can skip probate:

1. Small Estates

Many states have simplified procedures for smaller estates. The threshold varies widely:

• California: Under $184,500
• Texas: Under $50,000
• Oklahoma: Under $20,000

If the estate falls below your state’s threshold, beneficiaries might only need to file an affidavit (a sworn statement) to claim assets, rather than going through full probate.

2. Jointly Owned Property

When property is held with “right of survivorship,” it automatically passes to the surviving owner(s) when one owner dies. No probate needed! This includes:

• Joint tenancy
• Tenancy by the entirety (for married couples in some states)
• Community property with right of survivorship (in community property states)

3. Assets With Beneficiary Designations

Many financial assets allow you to name beneficiaries who receive the assets directly upon your death, bypassing probate:

• Life insurance policies
• Retirement accounts (401(k)s, IRAs)
• Payable-on-death (POD) bank accounts
• Transfer-on-death (TOD) investment accounts and securities
• In some states, transfer-on-death deeds for real estate

4. Assets in a Living Trust

This is a big one! Assets properly transferred to a living trust during your lifetime don’t go through probate. The successor trustee you named can distribute these assets without court involvement, often within weeks rather than years.

One of our clients, Maria, saved her family significant time and money by creating a revocable living trust. When she passed away, her home, investments, and bank accounts transferred directly to her children without a day in probate court.

The Role of State Laws in Probate Requirements

It’s super important to understand that probate laws vary significantly from state to state. Each state has its own:

• Threshold amounts for small estates
• Procedures for simplified probate
• Rules about intestate succession (who inherits if there’s no will)
• Timeline and cost structure for probate

For example, in California, the probate threshold is $184,500, while in New York, it’s just $30,000.

Also, if you own property in multiple states, your estate might face separate “ancillary probate” proceedings in each state where you own real estate. Talk about complicated!

The Real Cost of Probate

Let’s get real about what probate actually costs. It ain’t cheap, folks!

In California, statutory attorney and executor fees follow this scale:

• 4% of the first $100,000
• 3% of the next $100,000
• 2% of the next $800,000
• 1% of the next $9,000,000

For a modest $500,000 estate, that’s potentially $13,000 for the attorney and another $13,000 for the executor – $26,000 total! That’s before additional costs like court filing fees, publication fees, appraisals, etc.

Beyond money, probate also costs TIME. In most states, probate takes a minimum of 7-9 months, but often stretches to 1-2 years or more. During this time, assets can be frozen, creating potential hardship for heirs who need access to funds.

What Happens If a Will Isn’t Probated?

This is something many people don’t consider. If there’s a will but it isn’t submitted for probate, some serious problems can arise:

1. Assets remain in the deceased’s name – Banks, investment companies, and other institutions won’t release funds without proper legal authority
2. The will’s instructions aren’t legally enforced – Without court validation, the will has no binding legal force
3. Family disputes may escalate – Without court oversight, disagreements can tear families apart
4. Creditor issues remain unresolved – There’s no formal process to address or reject claims
5. Real estate titles remain clouded – Creating problems that may not surface for years

We had a client whose parents had a will but the family decided to “handle things themselves” without probate. Years later, when they tried to sell the family home, they discovered they couldn’t provide clear title to buyers because the property was still legally in their deceased parents’ names. The resulting legal mess cost far more than probate would have.

So How Can You Actually Avoid Probate?

If you’re thinking “Yikes, I want to spare my family this mess!” – you’re not alone. Here are the most effective strategies we recommend to our clients:

1. Create a Revocable Living Trust

This is probably the most comprehensive approach. You transfer assets to the trust during your lifetime (while maintaining control as the trustee). When you die, your successor trustee distributes everything according to your instructions – no court involvement needed.

2. Use Joint Ownership Strategically

Adding joint owners with right of survivorship to property can avoid probate, but be careful – this means sharing control during your lifetime and potentially exposing assets to the co-owner’s creditors.

3. Designate Beneficiaries Wherever Possible

This is super simple for many financial assets – just fill out the beneficiary forms for your life insurance, retirement accounts, etc. Some states even allow transfer-on-death deeds for real estate.

4. Gift Assets During Your Lifetime

While this reduces your estate, it also means giving up control of those assets. Plus, there may be gift tax implications for larger gifts.

Do You Need a Probate Attorney?

Navigating probate can feel overwhelming, especially while grieving. A probate attorney can help by:

• Managing the legal paperwork and court appearances
• Guiding executors through their responsibilities
• Resolving disputes between beneficiaries
• Ensuring all legal requirements are met
• Potentially expediting the process

We’ve seen many DIY executors struggle with the complexity of probate, ultimately spending more time and money than if they’d hired help from the start. But every situation is different, and some straightforward estates can be handled without legal representation.

Final Thoughts: Planning Ahead Makes All the Difference

The truth is, whether probate is necessary if there’s a will depends on many factors – but with proper planning, you can minimize or even eliminate the need for probate.

I always tell my clients that the greatest gift they can give their loved ones isn’t just a will – it’s a comprehensive estate plan that considers how to transfer assets with minimal court involvement, expense, and delay.

We’re here to help if you have questions about your specific situation. Just remember: a little planning today can save your family significant stress, time, and money tomorrow.

Have you had experiences with probate? Were you surprised by anything in this article? Drop a comment below – I’d love to hear your thoughts!

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This article is for informational purposes only and does not constitute legal advice. Laws vary by state, so consult with an attorney in your area for advice specific to your situation.