A probate proceeding may be unnecessary under some circumstances. For example, if an estate consists of entirely jointly owned property that passes to the survivor under contract principles, there may be no need for a probate proceeding. Examples of this type of arrangement include life insurance contracts, some retirement plans, and jointly owned bank accounts.
Probate can also be avoided through proper pre-death planning, usually involving the use of living trusts (also called revocable trusts). As the name suggests, living trusts are effective during a person’s life (as opposed to testamentary trusts, which only become effective at death). Living trusts allow a person to transfer all of their assets to the trust during their lifetime while retaining full control of the transferred assets. At death, all of the decedent’s assets are owned by the living trust, so the decedent effectively has no probate estate.
Most states do provide several exceptions from estate administration (as distinguished from the need for probate of the will). The following are examples from one particular state.
- Personal property owed to the deceased not in excess of $30,000 may be delivered to heirs or successors of the decedent by affidavit. This would include items such as debts, obligations, stocks, or choses in action (legal claims or receivables), as long all of them, when aggregated, are less than $30,000.
- Certain bank accounts may be transferred to designated persons without the necessity of estate administration.
- No administration is required for an estate to collect wages that the decedent earned but were not yet paid at the decedent’s death.
- A will may be probated as a muniment of title if the value of the decedent’s personal property is no more than $10,000 and all known debts of the estate have been paid. Both residents and nonresidents can use the muniment of title procedure.