No. Contrary to popular belief, not all wills go through probate.
There are mechanisms available to avoid or reduce probate, but if your loved one owned a home or had any sort of sizable estate ($200k+) that wasn’t passed through a trust, then probate is all but guaranteed.
In other words, most estates, especially those with homes, will go through probate, but for the ones that can skip it, it is extremely useful to do so. Probate is a lengthy legal process that delays inheritances and, frankly, is just a lot of forms and work. Not an unreasonable amount, but a lot.
7 Steps to Skipping Probate (If Possible)
Each state has their own probate shortcuts estates can take if they fall under a certain value. These are commonly known as small estate affidavits. If the estate has more probate assets than the legal ceiling, you have to do traditional probate. If the estate falls under it, then you can qualify for reduced probate or skip probate entirely.
Here is a short list of steps to figure out if your will and estate can avoid probate (we’ll cover more details in the section after this).
#1 Determine what the county or state’s small estate (or other equivalent) requirements are
You can do this by:
- Opening up this list of small estate affidavit thresholds
- Googling “small estate affidavit rules in [ESTATE COUNTY AND STATE]”
- Or hiring a probate attorney
Your particular jurisdiction may call reduced or bypassed probate by a different name than small estate, such as summary administration, but they are all versions of shortened probate.
#2 Estimate your estate’s probate asset value
Add up all of the probate assets you know of + plus any state deductions, and see if it falls under that threshold. If it exceeds the threshold, initiate probate like normal. If you think the estate falls under the threshold, wait the required number of days (15-60) before applying. Each state has a wait period before you can file for a small estate affidavit.
For example, if the estate is based in Arkansas, then the ceiling is $100k. If the deceased had two cars worth $15k each, a solely owned bank account without any beneficiary designations with $60k in it, and $50k in bonds, there’s no need to count anything else (yet). You’re already past the threshold and know you’ll have to go through probate.
#3 Make a specific list of probate assets and collect all other sensitive documents during the wait period
Get the death certificate, all titles, and any other documents you need while also preparing a detailed list of probate assets in a spreadsheet or document.
#4 Acquire the form online or in person and complete it
After the wait period is over, acquire the necessary form(s). Most probate courts offer the forms online or in person, and the local government site and/or clerk will be able to give you the correct ones.
#5 Contact all beneficiaries
Anyone who could receive assets must be made aware of the small estate filing. Keep receipts of all communication. If someone formally contests the small estate filing, then the estate will have to go through probate.
#6 File the forms with the probate clerk
Bring all probate forms, documents, receipts, and the filing fee to the probate clerk to officially submit and finish the process. They will tell you in a week or two if it has been accepted.
#7 Distribute any assets (if applicable)
If there are any assets to give, distribute them according to the will if it exists, or the intestacy laws if it does not.
That’s the short version, but let’s get into this a bit more.
When does a will go through probate?
Does Every Will Go Through Probate?
The vast majority will, but not all. Essentially every state, and sometimes individual counties, have thresholds, say $100k, or $150k, that determine if an estate can skip some or all of probate. In California in 2022, it’s $184,500*. In Shelby County Tennessee, you must have less than $50k in probate assets*.
These estate asset value thresholds are broadly known as small estate affidavits.
And even if you don’t live in a state that lets you avoid probate entirely, most include a “skinny” version of probate that skips a lot of forms and oversight. I can’t say this enough: if you qualify to avoid or reduce probate, do it, and do not apply to a higher level of probate before figuring this out.
Why? Because if you apply for a higher level of probate, you’re stuck in it. You can’t drop down. So what could have been a couple weeks process could turn into a whole year. No thank you.
You may be able to skip probate if the estate’s jurisdiction allows:
- Beneficiaries to acquire property via an affidavit (official form) from the local probate court.
- Dependents or surviving spouses/partners can take that affidavit to banks and other financial institutions to transfer funds/account ownership.
And the estate is under the state or jurisdiction's probate asset threshold.
You may have noticed that we keep saying “probate asset” and not just “asset”.
Here’s more on that distinction.
How to Figure Out Your Estate’s Probate Asset Value
Not all assets someone had when they pass away are subject to probate, and therefore not all assets are probate assets. With regard to these thresholds to skip probate, we are only concerned with probate assets — not non-probate assets.
So what’s the difference?
Non-probate assets are any assets that transfer ownership to intended beneficiaries after death, either automatically or through a third-party.
Non-probate assets are any assets that transfer ownership to intended beneficiaries after death, either automatically or through a third-party
Probate assets are any assets, either whole or partial, that are still owned by the deceased at the time of death AND did not have any mechanism in place to transfer ownership.
What to include in Your Probate Asset Value
Here’s what to count in your tally. If you start counting these up and realize you are past the small estate threshold, then you will need to go through probate.
- Bank accounts held in a single name WITHOUT a designated beneficiary
- Stocks, bonds, and other securities owned by the individual
- Individually-owned homes or any other ownership interest in real estate
- Cars, boats, and other vehicles
- Personal property including cameras, computers, collectibles, furniture, jewelry, and guns
- Crypto or other digital assets
Again, if the person owned a home by themselves, chances are you exceed the threshold. So take a look at this list, and if you’re immediately like, yeah this is easily over $200k. Then that’s probably enough to assume you need to do it.
Atticus Advice: There’s a bit of a catch-22 that develops here. It can be hard to know what your probate asset value is if you can’t access sensitive accounts because you don’t have your letters yet. Letters testamentary or letters of administration are the official documents from the probate court that give you (or the executor, rather) the legal right to access and control the deceased’s assets.
An executor can only get the letters by starting probate… so what do you do? If the real estate trick doesn’t give you your answer, then tally up everything you know of and see how close you are to the threshold. If you really don’t have any idea, then you will likely just have to initiate probate. Which is just fine! It just means it may take a little longer to distribute inheritances.
If you think it’s close, then you should also make sure you’re not including any non-probate assets in your tally (see next section).
What Not to Count in Your Total Estate Probate Asset Value
Here are the most common non-probate assets:
Property in Trusts. Assuming the trust was properly funded (a.k.a. The right steps to transfer ownership occurred), any assets in that trust will not go through probate and should NOT be counted in your total estate value.
Note: in cases of pour-over wills, which are fail safes to prevent assets from slipping through the cracks and are transferred to a trust after death, those assets are subject to probate and should be counted.
Any account with a named beneficiary. Payable-upon-death (POD) or transferable-upon-death (TOD) accounts are bank accounts with a predetermined beneficiary. These must be set up before the person passes away, but if set up correctly upon death the account ownership will directly transfer without needing to go through probate. This means you do not count assets in these accounts in your total probate asset value.
Joint Accounts and Assets. Any property or accounts with joint ownership and right of survivorship will transfer directly to the surviving owner. If both owners pass at the same time or if the surviving spouse/owner did not designate a new joint owner, then it would be considered a probate asset.
Life Insurance Policies. Life insurance policies bypass probate and should not be counted.
📖 While these are the main non-probate assets, there are many others. You can see a complete list here: Probate and Non-Probate Assets: What’s the difference?
Note: Some states may have certain income and assets you can deduct from an estate’s value. For example, in California, you can exclude unpaid salaries and unused vacation benefits from an estate’s value when determining if you qualify for a small estate affidavit*.
Frequently Asked Questions About Wills and Probate
There’s a lot of information in probate, but you totally got this! Here are a few of the most common questions we see and receive about wills and probate.
When does a will go through probate?
After someone dies, the family is legally required to file the will within a certain timeframe, usually a month. Once the will is filed, the executor named in the will petitions the court to begin probate and ensures the person’s wishes are carried out. This usually happens within the first month or two, and there are many reasons for getting probate started early, including getting inheritances faster and starting the clock on people who may be owed money by the estate.
If they didn’t have a will, then the assets will be distributed according to local intestacy law.
What does a small estate form look like?
Here’s an example of a small estate affidavit form. They are fairly simple, and the biggest portion is providing your list of assets.
Does a small estate affidavit have to be notarized?
Most states require notarized affidavits of some sort, and we recommend getting your affidavit notarized regardless of whether it is required or not as a form of legal protection.
See more -> Which states need notarized small estate affidavits
What happens if probate isn’t completed or ignored?
If the family or executor doesn’t complete probate, then a lot of bad things happen:
- No one can get their inheritance
- Creditors have more time to claim debts owed by the estate
- The probate court can reprimand and even fine you in some situations
- Executors could be on the hook for estate debts
What does an executor have to do exactly?
A lot, but being an executor can also be a deeply fulfilling process. You are caring for the deceased one last time by carrying out their wishes. Duties include maintaining assets, paying taxes, filing notice to creditors, and much more.
For a complete list of executor responsibilities, read: How to Succeed as the Executor of an Estate.
The bottom line about wills going through probate
Most estates have to go through probate. If the deceased owned a home, then probate is probably a sure bet. If the deceased had very little, then there is a chance you can skip it or shorten it with a small estate affidavit. You’ll need to add up all the assets you know about and see if they fall under the threshold set by the state and/or county the deceased permanently lived in.
If the estate is under the threshold, then go get the appropriate form and skip or shorten it! If not, or you really aren’t sure how much the person had, you’ll probably have to initiate probate to be able to access all the assets, which isn’t all that bad! It just means things will take a little longer.
