Whether an estate goes through probate or not, depends on how the decedent held assets and what types of as­sets were owned at the time of death. Certain assets have to go through probate, other assets do not.

The following is a list of assets that typically avoids probate:

• Jointly held property with rights of survivorship
• Life insurance and annuities with a named beneficiary
• Retirement plans, IRAs, and pensions with a named beneficiary
• Assets held in a Living Trust at the time of a decedent’s death
• Payable on Death (POD) bank accounts
• Transfer on Death (TOD) affidavits for real estate
• Transfer on Death (TOD) stocks, bonds, and brokerage accounts
• Transfer on Death (TOD) automobile titles

All other assets that are titled in the decedent’s individual name alone or where no beneficiary is named must go through probate.

There are three levels of probate.  They are based on the dollar value of the assets that are going through probate.  The three levels are as follows.

Summary Release – The estate can be paid to the person who paid the funeral bill as long as the estate is less than $5,000 or the cost of the funeral, whichever is less.  Thus, if the bank account is $3,500 and the funeral bill is $1,500, then you have to do a Relief from Administration.  If there is a surviving spouse, a Summary Relief may be granted for an estate not exceeding $40,000 plus $5,000 for the funeral bill.

Relief From Administration – You can apply to have the estate relieved from administration if the probate assets are less than $35,000 payable to a non-spouse and $100,000 payable to a spouse.  You file an Application for Relief From Administration and the court will issue an order allowing the relief and appointing someone as commissioner to collect the assets.  This is considered a small estate procedure.

Full Administration – All other estates must do a full administration which includes appointment of the executor/administrator, filing of the inventory, waiting for the will contest period and creditor claim period to expire, and the filing of an account with the court.

• One month – file the will and have the fiduciary appointed (i.e., the fiduciary is called an executor if there is a will, or an administrator if there is no will)
• Three months – will contest period ends and the inventory is filed
• Six months – creditors must make claims or else their claims are barred
• Nine months – estate tax returns are due
• Six months to one year (or more) – make final distributions to the heirs and file the final account

For a detailed list of due dates and a typical timetable, see:

http://www.probatect.org/services/instructions/pdf/fullAdministrationInstruct.pdf

• File the will with the probate court
• Send notice of the filing of the will to all persons listed in the will and those who would inherit if there was no will or the will was invalid
• Have the executor (or administrator when there no will) appointed.  Once appointed, the Probate Court issues a court order called “Letters of Au­thority”
• Appraise and value the assets
• File an inventory listing the assets in the probate es­tate
• Send notice of the filing of the inventory to the heirs
• Have a hearing if any beneficiaries object to the in­ventory
• Sell assets as needed to pay debts
• Resolve will contests, if any
• Resolve creditor claims, if any
• File estate tax returns
• Transfer and distribute assets to the heirs
• File a final account showing all distributions from the estate

The Court deals with will contest, estate litigation, creditor issues, and other problems that might arise in the administration.

The Court makes sure the executor follows the terms of the will or the law in distributing the estate to the heirs.  The Court requires notice and has hearing at each of the major steps to allow objecting parties to have their day in Court.