Is Probate Necessary?

A simple starting point for understanding whether an estate may need to go through probate.

Do I Need To Go Through Probate?

When someone dies, one of the first questions families often ask is whether probate is required. The answer depends on what the person owned, how those assets were titled, whether beneficiaries were named, and the rules in the state or locality where probate may take place.

Some assets may need to go through probate before they can be transferred. Other assets may pass automatically to another person without going through the probate process.

This page will help you understand the basic difference.

What Does Probate Do?

Probate is the legal process used to give someone authority to handle certain assets after a person dies. That person may be called an executor, administrator, fiduciary, or personal representative, depending on the situation and the state.

Probate may be needed when assets are owned only in the deceased person’s name and there is no other legal way for those assets to transfer.

Probate can involve:
Proving or recording a will
Appointing an executor or administrator
Identifying heirs and beneficiaries
Collecting probate assets
Paying valid debts and expenses
Preparing inventories or accountings
Distributing remaining assets

Basically, probate is the process of giving someone legal authority to handle certain property after a person dies.

What Assets May Need Probate?

A probate asset is generally an asset that was owned only by the deceased person and does not have a beneficiary designation, joint owner with survivorship rights, trust ownership, or other automatic transfer method.

Examples of assets that may need probate include:
Bank accounts only in the deceased person’s name
Vehicles only in the deceased person’s name
Real estate owned only by the deceased person
Personal property with no automatic transfer method
Investment accounts with no beneficiary designation
Certain business interests

These are general examples. The exact rules vary by state. Consult an experienced attorney for more information.

What Assets May Avoid Probate?

Some assets may pass outside of probate. This does not always mean there is nothing to do, but it may mean that the asset does not have to be transferred through the probate court or probate office.

Examples of assets that may avoid probate include:
Life insurance with a named beneficiary
Retirement accounts with a named beneficiary
Joint bank accounts with survivorship rights
Real estate owned with survivorship rights
Payable-on-death / Transfer-on-death accounts
Assets held in a trust

For example, if a life insurance policy names a beneficiary, the insurance company may pay that beneficiary directly. If a bank account has a payable-on-death designation, the bank may be able to transfer the funds directly to the named person.

When Might Probate Be Required?

Probate may be needed if the deceased person left assets that cannot otherwise be transferred.

Common situations include:
The person owned a bank account only in their own name
The person owned real estate only in their own name
There was no beneficiary listed on an account
A beneficiary designation named the estate
The person owned vehicles, refunds, or other property in their own name
There is a will that needs to be recorded or admitted
There is no will and someone must be appointed to handle the estate
Financial institutions require proof of legal authority

Sometimes families assume that having a will avoids probate. A will does not usually avoid probate by itself. A will explains who should receive assets, but probate may still be needed to give the executor authority to carry out those instructions.

Who Can Help You Confirm Whether Probate Is Needed?

If you are unsure whether probate is necessary, you may need to speak with the appropriate local probate office, clerk’s office, Commissioner of Accounts, attorney, or other qualified professional.

Before calling, it may help to gather basic information such as:
Did the person have a will?
Where was the person legally living at the time of death?
What assets were owned?
Were any accounts jointly owned?
Were beneficiaries named?
Was there real estate?
Was there a trust?
Were there debts or creditor claims?
Are family members in agreement?

You do not need to know everything before asking for help, but having this information can make the conversation more productive.

The Probate Nation episode library includes videos about when probate may be needed, how to start the process, what documents may be required, and how probate assets are handled.