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Are Probate Laws Same in All States?

Oct 09, 2006 | | Comments Comments Off

Dear Liz: Are laws regarding probate the same in all states? Do all estates have to go through probate upon the owner’s death, or does the estate go through probate only if it is above a certain value? If the rules vary by state, how do I find out the procedures for my state?

Answer: Probate is the legal process in which a court oversees the distribution of a dead person’s property.

The basic process is the same in every state: Assets are identified, creditors and taxes are paid, fees are distributed to attorneys, appraisers, accountants and others handling the estate. Whatever remains is distributed to the heirs.

You can avoid probate in all states by taking certain actions, such as creating a living trust or holding all your assets in ways that bypass probate, such as joint tenancy.

Otherwise, the rules about which estates must go through full probate, and which can avoid it, vary considerably by state. Some states have affidavit procedures that allow small estates to bypass probate entirely, but the definition of “small” ranges from $5,000 in New Jersey to $150,000 in Wyoming.

Other states offer simplified probate procedures for certain estates. In California, for example, estates worth $100,000 or less can qualify. California also has a “community property petition” that allows property of any amount to be transferred to a surviving spouse without going through full probate.

The Nolo Press Book “Plan Your Estate,” by attorneys Denis Clifford and Cora Jordan, includes a brief summary of state probate laws. You’ll find more complete details for each state in Nolo’s “8 Ways to Avoid Probate” by Mary Randolph.


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