So as I mentioned last month, I have been doing a lot of probate work recently. And there I discussed what is needed to begin probate. This month I want to discuss what the different probate options are.
The simplest option is the small estate affidavit. The limitation is that you can only use a small estate affidavit if the total assets are under $40,000. You also have to have proof of the assets and will not be an executor or personal representative. This means if you don’t know the assets, you cannot use a small estate. But if you know all the assets and they’re under $40,000, a small estate affidavit will result in a court order giving access to those assets. It’s a great option.
Another “easy” option is the determination of heirship. However, this is only available a year after a person has died. It also requires a court hearing. And because a will has to be admitted into probate within a year of the death, you cannot use a will. The assets can only pass intestate. At the end of the hearing, there is a court order showing who the heirs are who get the assets. So again, there will not be a personal representative to get access to unknown assets, but it’s another simple option to get to assets.
However, if the assets are over $40,000, you can’t wait a year, or if there’s an unknown and you need to gather information, the only option is a full probate proceeding. A full probate process is what most people want to avoid with a proper estate plan for a few reasons. First, it opens the assets to creditors and challenges. Secondly, you’re paying attorney to handle it all. And finally, in a simple case, it won’t be resolved for over six months and normally will take over a year to complete. So while, it’s sometimes the only option, it’s the proceeding most people think of and want to avoid.