Is Probate Necessary?

If there are assets in the name of the decedent alone, probate is necessary to re-title those assets.  Any assets payable to an estate must go through probate.  For example, you name your estate as the beneficiary of a life insurance policy or the named beneficiary died before you and there is no second beneficiary listed, you must open probate to collect the life insurance.  If there is litigation on behalf of the deceased, then a Probate estate will need to be opened.  The executor or administrator has the power to bring an action on the estates behalf.

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.

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