Author: Mark Bradshaw

Avoiding the Probate in Small Estates-The Summary Proceedings

If your loved one passed leaving a Will as their only form of estate planning then the Will most likely must go through probate in the probate court in order to be valid as a testamentary device. However, if your circumstances are unique and fall into a few limited fact patterns you will be fortunate in that it is possible to avoid probate court and simply have the estate administered in one of several summary probate procedures.

Summary probate procedures work best when the number of heirs are limited and all parties are working together in a harmonious fashion. If there is a significant amount of acrimony among the heirs or heirs are scattered throughout the country the summary probate procedures can be a bit cumbersome.

Generally, these procedures work when the dollar value of the property owned by the probate estate does not exceed $150,000 in value and it has been more than 40 days since the date of death of the loved one. When calculating the value of the probate estate it is important to note that property held in joint tenancy, non-probate transfers, life estates, pay on death accounts and other assets are excluded from the cap.

The first summary probate procedure is collection of personal property via an affidavit. In this procedure all of the heirs or those entitled to receive the property may execute an affidavit for presentation to the holder of the property and demand that the property be delivered to them. The affidavit must contain those items required by the probate code and have a death certificate attached thereto.

The second summary procedure applies to real property and may fall into two categories. If the fair market value of the real estate does not exceed $50,000 then the property may collected via the affidavit procedure. Otherwise, if the property is valued at greater than $50,000 and the gross value of all other property of the probate estate does not exceed $150,000 then the heirs may petition the probate court for a summary proceeding to determine their right to inherit the real property.

One of the important factors to be considered before choosing a summary proceeding are creditor concerns and outstanding obligations of the deceased loved one. If there are outstanding bills and debts, those obligations will attach to the property and pass along with the property to the ultimate recipient. While, in the absence of any personal guaranty, the recipient is not personally liable for the debts, the creditor may look to the property received as payment on the outstanding obligation. When creditor concerns are a factor a full probate administration should be strongly considered to take advantage of the creditor claim process available in a probate administration.