Heritage Living Trust

Probate Schedules by State

One of the basic reasons to create a revocable living trust is to avoid probate. However, many people often find themselves the administrator of an estate that needs to go through the probate process. Probate laws are governed by each state and each state’s probate exemption law is different. (One of the major reasons to avoid probate in every state where you may have property.) Usually what is permitted is determined by accepted custom and practice in the local legal community. The checklist does not define how individual state law calculates the dollar limits for exemptions, transfers by wills, i.e., whether the limit applies to your gross estate (the market value of everything you own with no deductions for debts), net estate (market value less debts and encumbrances), or net probate estate (net value of property left by will). The checklist summarizes each state’s law and provides three categories of information for each state.

Affidavit Procedure Instead of Probate

This category tells you whether the state has a law allowing any property left by a will to be transferred by affidavit, free of al probate. If there is a “no” in this category, then the state does not have this kind of law. “Free of normal probate” means that no actual court proceeding, notice of hearing, hearings before a judge, formal pleadings, etc. are required. Some states still require a relatively simple affidavit to be filed with a court or court clerk. Other states don’t require any judicial filing at all.

If there is a dollar figure in this category, it means the state has a law allowing property up to the dollar figure listed to be transferred by this method. Any restrictions on the type of property than can be transferred are listed. Some states allow only personal property and not real estate to be transferred. Real estate is usually so valuable that it is unlikely that an interest in real estate would fall below the dollar limit, unless the ownership in the property is a very small percentage of the whole. Any restrictions on who the beneficiaries can be are also listed. The checklist does not set forth the precise information which must be in an affidavit, if one is required. Search your state’s law to determine this.

Summary Probate

This category provides the same kind of information as given in category 1 for those states which do require probate, but offer a simplified or truncated version. Again, these procedures vary widely from state to state. Under a summary probate, the executor files an application to probate the will exactly as in traditional probate. A hearing is then held to “prove” the will. If the will is proved valid, and it’s shown that the estate has no outstanding debts or other problems the court orders summary probate dispensing with many of the tedious steps or normal probate. Since the will has been proved in court, title to the property transferred in this way isn’t open to challenge. This avoids a problem that sometimes occurs with the small estate affidavit.

Statutes

This category lists the legal citation for each state’s probate exemption statute. If the state has two statutes, one for an affidavit procedure and another for a simplified probate, both citations are given. In such cases, the first citation given is to the Affidavit Procedure statute. The citations are to the first section of the relevant statute. The + symbol after the statutory cite means that other pertinent sections follow the first section that is noted.