Schedule an Appointment

720.312.4825

frieda@leonardlawplanning.com

Select Page

When a loved one passes away, one of the first questions that often arises is whether probate is necessary. Probate is the legal process through which a deceased person’s estate is administered, debts are settled, and assets are distributed to beneficiaries. However, probate is not always required—depending on the nature of the estate, certain assets can pass directly to heirs without court involvement. In this post, we’ll walk you through the steps to help determine if probate is necessary and when it can be avoided.

Step 1: Review the Deceased’s Estate Planning Documents

1. Check for a Will
If the deceased person had a will, it will outline how their assets should be distributed. In most cases, probate is required to validate the will and oversee the distribution process. However, if all assets can be transferred without court involvement (e.g., assets with beneficiaries or jointly owned property), probate may not be needed.

Key question: Is there a will? If yes, does it specify whether probate is necessary?

2. Review Any Trust Documents
Many people set up trusts (like a revocable living trust) to avoid probate. Assets in a properly funded trust pass directly to beneficiaries without needing to go through probate. If the deceased had a trust, check if the assets were properly placed into it.

Key question: Did the deceased have a trust? Are the assets properly funded into the trust?

3. Look for Beneficiary Designations
Certain assets, such as life insurance policies, retirement accounts (e.g., IRAs, 401(k)s), and bank accounts, can pass directly to beneficiaries via named designations. These types of accounts typically don’t require probate, as they are outside the probate estate.

Key question: Were there any assets with beneficiary designations that can pass directly to beneficiaries?

Step 2: Assess the Type of Assets in the Estate

1. Jointly Owned Property
Property held in joint tenancy or as “joint tenants with right of survivorship” (JTWROS) automatically passes to the surviving owner(s) without needing probate. This includes real estate, bank accounts, and other jointly owned assets.

Key question: Were there any assets held jointly with another person? If so, who is the surviving joint owner?

2. Non-Probate Assets
Some assets, like payable-on-death (POD) accounts or transfer-on-death (TOD) accounts, pass automatically to beneficiaries upon death and don’t require probate. If the decedent owned such assets, probate may not be necessary.

Key question: Are there any non-probate assets (e.g., POD/TOD accounts, life insurance policies, or real estate) that can transfer directly to a named beneficiary?

3. Small Estates Exemption
Many states, including Colorado, allow a simplified process for small estates. If the estate’s total value is below a certain threshold, it may be eligible for a simplified procedure that avoids formal probate. The rules for small estate procedures vary by state.

Key question: Is the total value of the estate below the small estate threshold for your state? Check your state’s laws to confirm.

Step 3: Consider the Deceased’s Debts and Creditors

1. Outstanding Debts and Creditors
If the decedent has significant outstanding debts, probate may be necessary to ensure they are properly settled. If debts are minimal or the deceased has no creditors, probate might not be required.

Key question: Does the decedent have significant debts or creditors to address?

2. Secured Debts
Secured debts (e.g., mortgages, car loans) may require probate to resolve, particularly if the property is titled in the deceased’s name. If the decedent’s debts include secured loans, probate could be needed to transfer the property or pay off the debt.

Key question: Are there secured debts that need to be resolved through probate?

Step 4: Review State Law and Local Court Rules

1. State-Specific Laws
Probate laws vary from state to state. Some states allow for simplified probate procedures or have specific exceptions that can bypass probate for certain types of estates. It’s important to familiarize yourself with your state’s probate laws or consult an attorney for guidance.

Key question: What are the probate requirements in your state? Each state has different thresholds and rules for when probate is required.

2. Transfer of Real Property
Real estate held in the deceased’s name alone (without joint ownership or a transfer-on-death designation) generally requires probate to transfer ownership. If the decedent owned real property, you may need to go through probate to have it properly transferred.

Key question: Does the decedent own real property? Will it require probate to transfer?

Step 5: Consider the Need for Formal Administration

1. Are There Potential Disputes?
If there are family disputes over the will, the distribution of assets, or the validity of the estate planning documents, probate may be necessary to resolve those issues in court.

Key question: Are there any potential disputes regarding the will or how the estate should be handled?

2. Is a Personal Representative Needed?
If there is no will or if the will does not appoint an executor, probate may be needed to appoint a personal representative (or administrator) to manage the estate. Even if the decedent had a will, probate may still be necessary if the named executor cannot serve.

Key question: Does the estate require the appointment of a personal representative to administer the estate?

Step 6: Consider Alternatives to Probate

1. Transfer-on-Death (TOD) or Payable-on-Death (POD) Accounts
Accounts with TOD or POD designations allow assets to transfer automatically to the named beneficiaries, bypassing probate. If the decedent had such accounts, you may be able to transfer these assets without formal probate proceedings.

Key question: Are there TOD/POD designations on assets that can transfer directly to a beneficiary?

2. Affidavit of Heirship
In some states, heirs can use an affidavit of heirship to claim certain assets without the need for probate. This is typically used for personal property or smaller estates. Each state has specific rules about what types of assets can qualify for this simplified procedure.

Key question: Is the estate eligible for a small estate affidavit or affidavit of heirship to transfer assets without probate?

Step 7: Consult an Estate Attorney
If you’re unsure about whether probate is necessary, or if the estate is complex, it’s a good idea to consult with an estate attorney. An attorney can help you navigate the probate process, determine if probate is required, and advise you on how best to proceed.

Key question: Should you consult with an attorney to clarify whether probate is required?

Conclusion:
Determining whether probate is necessary can be a nuanced process, depending on the decedent’s estate planning, the type and value of assets, outstanding debts, and the laws of your state. While some estates can be managed without the need for formal probate, others will require it to ensure the proper distribution of assets and settlement of debts. By following the steps outlined above and consulting with a professional when needed, you can determine the best course of action for handling your loved one’s estate.

Need help with probate or estate administration? Reach out to an experienced estate planning attorney to guide you through the process and ensure everything is handled properly.