Before starting probate, it’s worth pausing and asking whether probate is really needed. This can be a complicated question, and it’s always best to consult a probate attorney for your specific situation. But here are four common situations in which probate is not necessary.

You are the surviving spouse, and either ALL of your deceased spouse’s assets were jointly titled (like a joint bank account or having both spouses’ names on the title to the house), or you executed a Community Property Agreement prior to death. I generally think Community Property Agreements are overpowered, because they vest all property in the surviving spouse upon the death of the first spouse. If you have one, however, you probably won’t need probate. However, if the deceased spouse had separate accounts or wanted assets to go to certain people other than the surviving spouse, or if the couple had planned to create a tax sheltering trust upon the death of the first spouse, then probate is likely necessary.
A bank or other financial institutions has said that you will need “Letters Testamentary” to gain access to the deceased person’s funds. Usually this happens when there is an asset only in the name of the person who has passed away. The only way to get Letters Testamentary is by opening a probate and getting appointed as the personal representative of the administrator of the estate.
Your deceased loved one didn’t own any real estate, or all real estate was owned in joint tenancy, which means that the other owner now owns it outright. If your loved one owned real estate, even if the will says that you should be the personal representative, you cannot sign a deed transferring the property to a new owner unless a court has appointed you as the personal representative. This appointment only happens during probate. That said, some transfers of real estate can be accomplished through non-probate arrangements — including joint tenancy and “transfer of death” deeds.
The decedent had less than $100,000 of probate assets when they passed. In this situation, you can often use a small estate affidavit to gain access to their assets.

Before you head into court to open a probate proceeding, pause and ask whether one is really necessary. Talking to a knowledgeable attorney about whether probate is necessary in your situation can help. Give me a call today or set up an appointment soon.