This is a more streamlined version of probate, available in some cases to executors who are managing a small estate. Not only does this option offer an executor the chance to save a great deal of time and finances, but summary probate saves money and time for surviving relatives as well. As always in estate planning, state laws dictate the specifics of this process, but summary probate is available in almost all states, with Delaware and Virginia being the only exceptions.
What is a small estate?
The first step in determining whether or not an executor can use summary probate is to decide if an estate is small enough. This is where state law will specify what qualifies as a small estate, and these statutes can vary wildly. New York law dictates that an estate has to be evaluated at under $30,000 in order to be deemed a small estate. Nevada sets the limit at $200,000, however. The thing is, these limits usually apply only to the estate that is eligible for probate. In other words, assets in a living trust or in a payable-on-death bank account would not go through probate anyway; these assets would not be included when determining whether or not an estate is small. So even if an estate actually is substantial, if enough assets are going to avoid probate, everything else could go through summary probate. This is true for most states.
Then there are states where the amount of assets will not matter if everything in the estate is getting passed down to immediate family only, and if there are high-priority expenses or debts that must be paid. Again, the specifics will depend on a state's laws. There could be other statutes that say summary probate is only possible when everything is going to a surviving spouse, when there is not a will, or when every heir agrees on how the estate will be distributed.
How Summary Probate Works
Every state has its own deadlines and regulations, but typically speaking, an executor can get the ball rolling by filing a petition for a summary probate with the probate court. Some forms will ask the executor to affirm that as far as he or she knows, the will is valid. The petition could also ask the executor to say that they did their due diligence in looking for the will, or that there is currently no formal probate. This petition often needs to be accompanied by other papers, such as a will, a list of beneficiaries, and an inventory of property. In some states, the executor will have to publish a notice to creditors in the newspaper, alerting creditors to file any claims they have against the estate. Then there will be a time to wait, generally one month or two. The executor will then have to provide a judge with written confirmation that debts and taxes have been paid and that the estate is ready to be divided (in some states, this proof must include a "tax clearance"). And then it will be time to close the estate.
Even though this process is simpler than standard probate, it does not mean that it is simple. Most matters of estate planning are complex, especially if family disputes crop up. While it may not be necessary to work with a lawyer every step of the way, it is usually a time-saving step to consult with an experienced probate attorney about any estate planning issue you may have so you can understand how probate works in your state. Find the legal expertise you need on our site today!