The probate process, where the court determines the division of the assets and oversees the executor in distributing them, is not always necessary. Ask the following questions to determine if you can avoid probate.

Are there any items requiring court dispensation?

In a perfect world, the deceased had a full, legal will drawn up prior to their death. In this case, you may very well be able to avoid the full probate court experience. Otherwise, it may be necessary to go to probate so that the court can determine the proper division and dispensation of any assets. This will be determined under the state laws, for the state in which the deceased was a resident, for dividing the assets of a deceased individual that did not leave behind a legally binding will.

Is anyone contesting the will?

Unfortunately, the existence of a will does not necessarily mean that one can avoid probate. If someone that has a legal attachment to the deceased or their estate, such as family member or business partner, contests the will, probate may still be necessary. This is because writing something into a will doesn't necessarily make it legal. This issue is often seen in states where holographic wills are allowed. A holographic will is a will that is handwritten by the deceased and witnessed before their death. Since these wills often aren't vetted by a skilled estate attorney, they may have mistakes in them that render them invalid.

Are all assets held in common?

It is often the case that married couples will have most or all of their assets held in common, particularly if the estate is small. Examples of assets held in common are homes and property, vehicles, and joint bank accounts. Occasionally, these assets may be held with someone other than a spouse, such as an adult child or family member. If all of the assets belonging to the deceased are held in common and no one is contesting this, then probate can typically be avoided.

Can the estate afford to discharge all debts?

Outstanding debts can lead to the need for probate. Many debts are discharged upon death, but exceptions like final income taxes and the final medical bills will need to be paid out of the estate. If the estate does not have enough assets to cover these debts, then probate court will be necessary.

Contact a probate or estate attorney for more help with this issue. To learn more, contact a law professional like H. Charles Woerner, Jr. PA.