Determine if the estate can avoid probate
Probate is the legal process for identifying and distributing the Assets of a deceased person as well as paying any of their Debts.
Although it is legally required, depending upon the deceased's circumstances, certain parts of the process can be avoided.
You may prefer to avoid probate because it can be:
- Slow - the process can sometimes take many months or over a year, especially if the Estate is complicated or contested
- Costly - it requires additional expenses like fees for the Probate Court, an attorney, Executor, and Appraiser
- Public - as a legal proceeding, all its information will be in the searchable, public record
Whether you can avoid probate depends on a number of factors, such as if:
- The estate qualifies as a Small Estate based on its total value - each state will calculate value differently to determine eligibility
- The deceased held assets in a Trust - trust assets do not have go through the probate process to be transferred to the Heirs and Beneficiaries
- The deceased had Payable on Death (POD) or Transfer on Death (TOD) accounts - POD and TOD accounts pass directly to beneficiaries without going through probate
- The deceased owned property jointly with other individuals - those who also owned property jointly will not need to go through the probate process to access or own the property
Review the questions below to determine if any of these situations are applicable to the deceased's estate so that probate can be avoided.
Helpful Tips
What is a Payable on Death (POD) or Transfer on Death (TOD) Account?
POD and TOD accounts are an arrangement between an individual account holder and the financial institution that holds the asset (e.g., a bank account).
The individual account holder names a beneficiary (often a spouse, parent, or child) for the account.
This designated beneficiary inherits the account upon the account-holder’s death, without a need to go through the legal probate process.
In other words, the beneficiary automatically owns the POD or TOD asset once the account-holder dies.
How do I know if an account is Payable on Death or Transfer on Death?
If the deceased had a bank account, savings account, or investment account that was Payable or Transfer on Death, the account will be labeled “POD,” “TOD”, or “ITF” which is short for “in trust for.”
Normally, the ITF account will be named according to the beneficiary (e.g., “ITF Jane Doe”). In such a case, Jane Doe would be the beneficiary of the account and would automatically own the assets in the account without having to go go through the legal probate process.
For example, if a deceased person had an investment account worth $50,000 titled “ITF Jane Doe,” then Jane automatically became the owner of the $50,000 account when the deceased died.
Jane Doe should go to the financial institution where the account is located with personal ID and a certified copy of the deceased’s death certificate in order to gain access to the account.
How does a beneficiary claim money from a Payable on Death or Transfer on Death Account?
After the deceased passes, the beneficiary will need to show the financial institution where the account is located a Certified Copy of the deceased’s Death Certificate (Unofficial Copies are usually not accepted).
They will also need to prove their own identity with a valid ID to show they are the rightful owner of the account.
The financial institution may provide other paperwork which needs to be completed before the account can be accessed, but this varies by institution.
Once ownership of the account is proven, the account belongs to the beneficiary and they can keep the account as is, or opt to transfer the funds from the POD or TOD account to another personal .
What is a trust?
Trusts are legal documents that appoint a trustee (a person or a company) to hold assets on behalf of beneficiaries.
Trusts may be used in addition to a Will or as an alternative to a Will. They can be arranged in many ways, and can specify exactly how and when assets are given to the beneficiaries.
Important
Any assets owned by a trust will bypass the probate process. This means that the assets do not have to go through Probate Court in the state where the deceased lived in order to transfer to the beneficiaries.
If the deceased had a trust, make sure to review the document closely. Because they can be lengthy and complicated documents, it may be helpful to speak with a Trust Attorney for support.
What if both owners of a joint account are deceased?
When property is owned jointly, but both owners are deceased, the property must go through the probate process before it can be given to the heirs or beneficiaries.
Read More
To learn more about opening an estate and probate court, see the “Start the probate process” section of the Guide.
What is small estate probate?
Estates that qualify as a small estate may be able to go through a simplified probate process known as Summary Probate.
Summary probate is a simpler, faster form of probate for small estates and often requires less paperwork than regular probate.
Unlike regular probate, those who qualify for summary probate may not have to go to a court hearing to settle the estate.
Summary probate may also be referred to as:
- Small estate probate
- Simplified probate
- Streamlined probate
- Summary administration
While summary probate rules vary by state, it often involves:
- Filing an affidavit, which is a legal document that outlines the assets and debts of an estate
- Paying any debts of the estate
What value must an estate be to qualify as a "small" estate?
Small estates are defined by the laws of the state where the deceased lived.
In order to qualify as a small estate, most states require that the total value of the estate not exceed a specific financial limit (e.g. $50,000).
Each state provides their own rules for calculating the total value of an estate.
For instance, some states require that the deceased’s home value count toward the total estate value, while others do not.
Some states also require that the deceased died intestate (without a will) in order to qualify as a small estate.
Estates must have a value under specific limits to qualify as a small estate.
Review what each state requires to qualify as a “small” estate: Alabama - $25,000 Alaska - $150,000 Arizona - $75,000 Arkansas - $100,000 California - $150,000 Colorado - $66,000 aConnecticut - $40,000 Delaware - $30,000 District of Columbia - $40,000 Florida - $75,000 Georgia - $10,000 Hawaii - $100,000 Idaho - $100,000 Illinois - $100,000 Indiana - $50,000 Iowa - $100,000 Kansas - $40,000 Kentucky - $15,000 Louisiana - $75,000 Maine - $20,000 Maryland - $50,000: $100,000 Massachusetts - $25,000 Michigan - $21,000 Minnesota - $50,000 Mississippi - $50,000 Missouri - $40,000 Montana - $50,000 Nebraska - $50,000 Nevada: $25,000 - $100,000 New Hampshire - $10,000 New Jersey - $50,000 New Mexico - $50,000 New York - $30,000 North Carolina - $30,000 North Dakota - $50,000 Ohio - $100,000 Oklahoma - $50,000 Oregon - $275,000 Pennsylvania - $50,000 Rhode Island - $15,000 South Carolina - $25,000 South Dakota - $50,000 Tennessee - $25,000 Texas - $75,000 Utah - $100,000 Vermont - $10,000 Virginia - $50,000 Washington - $100,000 West Virginia - $100,000 Wisconsin - $50,000 Wyoming - $200,000
States that allow Transfer on Death deeds for real estate
- Alaska
- Arizona
- Arkansas
- California
- Colorado
- Hawaii
- Illinois
- Indiana
- Kansas
- Maine
- Minnesota
- Missouri
- Montana
- Nebraska
- Nevada
- New Mexico
- North Dakota
- Ohio
- Texas
- Utah
- Virginia
- Washington
- Washington, D.C.
- West Virginia
- Wisconsin
- Wyoming
Personal Considerations
Did the deceased have any assets that are Payable on Death (POD) or Transfer on Death (TOD)?
The asset should name the beneficiary to whom it transfers after the death of the owner.
If the beneficiary is still living, they now automatically own the assets in any account that was designated Payable on Death or Transfer on Death.
Common Payable on Death and Transfer on Death accounts include:
- Bank accounts
- Certificates of Deposit (CODs)
- Credit union accounts
- Securities/stock
- Investment accounts
- Real estate wit a Transfer on Death deed (only allowed in some states)
Good to Know
Payable on Death accounts may also be referred to as:
- Totten trust
- Tentative trust
- Informal trust
- Revocable bank account trust
Important
Assets marked as Payable on Death and Transfer on Death are not included in the total value of the estate. This is important when calculating the value for small estate eligibility.
Accounts that are not Payable on Death or Transfer on Death are regular accounts owned solely by the account holder and count toward to the total value of the estate.
Heirs and beneficiaries of the deceased will need to proceed with the legal probate process before they can access, sell, or give away the deceased’s regular accounts.
Read More
To learn more about opening an estate and probate court, see the “Start the Probate Process” Chapter of the Guide.
The asset should name the beneficiary to whom it transfers after the death of the owner.
If the beneficiary is still living, they now automatically own the assets in any account that was designated Payable on Death or Transfer on Death.
Common Payable on Death and Transfer on Death accounts include:
- Bank accounts
- Certificates of Deposit (CODs)
- Credit union accounts
- Securities/stock
- Investment accounts
- Real estate wit a Transfer on Death deed (only allowed in some states)
Good to Know
Payable on Death accounts may also be referred to as:
- Totten trust
- Tentative trust
- Informal trust
- Revocable bank account trust
Important
Assets marked as Payable on Death and Transfer on Death are not included in the total value of the estate. This is important when calculating the value for small estate eligibility.
Accounts that are not Payable on Death or Transfer on Death are regular accounts owned solely by the account holder and count toward to the total value of the estate.
Heirs and beneficiaries of the deceased will need to proceed with the legal probate process before they can access, sell, or give away the deceased’s regular accounts.
Read More
To learn more about opening an estate and probate court, see the “Start the Probate Process” Chapter of the Guide.
Did the deceased have a trust?
Assets listed in a Trust do not have to go through the probate process and are given directly to a named beneficiary.
The trust should identify all the assets owned by the trust, as well as beneficiaries. The document should also identify a Successor Trustee, the person responsible for actioning its instructions.
They are the only person legally authorized to give beneficiaries assets according to the rules of the trust.
Notify the successor trustee that they’ve been named in the deceased’s trust. They may need to speak with a Trust Attorney (preferably the attorney who drafted the trust, listed in its paperwork) to understand their obligations as a trustee.
Assets owned solely by the deceased (not held in a trust, jointly owned, or marked TOD, POD) will have to go through the probate process before they can be given to any heirs or beneficiaries.
Read More
To learn more about opening an estate and probate court, review the “Start the probate process” section of the Guide.
Assets listed in a Trust do not have to go through the probate process and are given directly to a named beneficiary.
The trust should identify all the assets owned by the trust, as well as beneficiaries. The document should also identify a Successor Trustee, the person responsible for actioning its instructions.
They are the only person legally authorized to give beneficiaries assets according to the rules of the trust.
Notify the successor trustee that they’ve been named in the deceased’s trust. They may need to speak with a Trust Attorney (preferably the attorney who drafted the trust, listed in its paperwork) to understand their obligations as a trustee.
Assets owned solely by the deceased (not held in a trust, jointly owned, or marked TOD, POD) will have to go through the probate process before they can be given to any heirs or beneficiaries.
Read More
To learn more about opening an estate and probate court, review the “Start the probate process” section of the Guide.
Does the estate qualify as a "small estate"?
The estate may avoid the probate process altogether or qualify for small estate probate, also known as summary probate. These methods are often faster, simpler, and less costly than the regular probate process.
The requirements for a small estate and summary probate typically include:
- An estate value under a certain amount
- Some states require that the deceased did not have a will
Important
Most states define “small” by the amount an estate is worth. However, each state calculates an estate’s worth differently, and identifies what's "small" differently too.
This value ranges quick significantly, from $10,000 to $160,000 depending on where the deceased lived. See the module above for your state's limit.
The estate is considered a “regular” estate and will need to go through the standard probate process in the state where the deceased lived.
Read More
To learn more about opening an estate and probate court, review the “Start the probate process” section of the Guide.
The estate may avoid the probate process altogether or qualify for small estate probate, also known as summary probate. These methods are often faster, simpler, and less costly than the regular probate process.
The requirements for a small estate and summary probate typically include:
- An estate value under a certain amount
- Some states require that the deceased did not have a will
Important
Most states define “small” by the amount an estate is worth. However, each state calculates an estate’s worth differently, and identifies what's "small" differently too.
This value ranges quick significantly, from $10,000 to $160,000 depending on where the deceased lived. See the module above for your state's limit.
The estate is considered a “regular” estate and will need to go through the standard probate process in the state where the deceased lived.
Read More
To learn more about opening an estate and probate court, review the “Start the probate process” section of the Guide.
Did the deceased own any assets jointly with another individual?
The asset owned jointly with another person is now owned by the surviving individual and should not be counted toward the total value of the estate.
Jointly owned assets are any asset or property owned by two or more parties (which can be an individual or a business).
To determine if an asset is owned jointly, look at how it is titled (Titles can be found on real estate tax bills, financial account statements, and car notes).
Good to Know
If any of the accounts reveal someone else’s name in addition to the deceased’s, the account could be jointly owned. For instance, if an investment account statement is addressed to “John and Jane Doe,” they are likely joint owners of the account.
Contact the other person named on the account to find out if they are joint owners. Common jointly held assets include:
- Real estate
- Bank accounts
- Vehicles
- Investment accounts
- Businesses
Assets owned solely by the deceased must go through the probate process before they can be given to the deceased’s heirs or beneficiaries.
The value of the asset will count toward the total value of the estate and may impact the size of the estate when determining “small” estate eligibility.
Read More
To learn more about opening an estate and probate court, review the “Start the probate process” section of the Guide.
The asset owned jointly with another person is now owned by the surviving individual and should not be counted toward the total value of the estate.
Jointly owned assets are any asset or property owned by two or more parties (which can be an individual or a business).
To determine if an asset is owned jointly, look at how it is titled (Titles can be found on real estate tax bills, financial account statements, and car notes).
Good to Know
If any of the accounts reveal someone else’s name in addition to the deceased’s, the account could be jointly owned. For instance, if an investment account statement is addressed to “John and Jane Doe,” they are likely joint owners of the account.
Contact the other person named on the account to find out if they are joint owners. Common jointly held assets include:
- Real estate
- Bank accounts
- Vehicles
- Investment accounts
- Businesses
Assets owned solely by the deceased must go through the probate process before they can be given to the deceased’s heirs or beneficiaries.
The value of the asset will count toward the total value of the estate and may impact the size of the estate when determining “small” estate eligibility.
Read More
To learn more about opening an estate and probate court, review the “Start the probate process” section of the Guide.
Providers to Contact
Probate Attorneys Near You
Probate Attorney help you determine whether the deceased’s estate qualifies as a small estate and provide guidance on small estate administration. They also help you comply with state and federal probate laws, assist with paperwork, the probate process, and the financial aspects of probate.
