Michael S. Simone, Esq.
Managing Attorney
How Much Does an Estate Have To Be Worth To Go To Probate?
When a person dies, their estate must go through probate before it can be distributed among the beneficiaries. In New Jersey, regardless of the size, the process is the same for probating an estate with the Surrogate’s Office in your County, how probate works, and how and where you can get help.
How the Probate Process Works
Probate is a legal process in which a will is proven valid or invalid, and estate assets are managed and distributed after someone dies. Surviving family members might have to go through probate if the decedent left behind assets that weren’t jointly owned or held in a trust. Doing so will require you to go to court and pay probate fees.
If you don’t know what this means, don’t worry. It’s not something most people think about very often. However, it can be helpful to understand your options when making estate plans—especially if you’re an executor.
Probate allows an executor (the person appointed by the decedent to carry out the terms of their will)) access to collect the decedent’s assets so they can distribute them properly among family members or friends who were named as beneficiaries in the will.
These assets may include:
- Bank accounts of the deceased person
- Property such as homes and cars
- Stocks and bonds
- Life insurance policies
- Retirement accounts, such as 401ks & IRA accounts
- Anything else they may have owned before they died that does not have a provision for an automatic beneficiary upon death.
How the Estate Value Affects Probate
An estate’s value is determined by calculating the assets owned at the time of death (money in a bank account, real estate, investment accounts, etc.). While some of these assets will already have a monetary value assigned, some will require a professional appraisal.
However, a proper estate plan can shelter your assets from this calculation and, therefore, having to file probate, by transferring them to your beneficiaries immediately upon death. We’ll get into that later.
A Will Alone Will Not Protect Your Estate From Probate
Even if you have a will, your estate must go through probate if your assets are not jointly owned or held in a trust.
Probate laws vary, but common assets that are subject to probate include:
- Property owned (real estate, vehicles, etc.)
- Personal possessions (clothing, jewelry, collections, etc.)
- Stocks and bonds
- Bank or investment accounts
Assets that are generally considered non-probate assets include:
- Life insurance w/ beneficiary
- 401(k) accounts w/ beneficiary
- Funds held in a pension plan
- Wages or salary owed to the deceased person
It’s Possible to Avoid Probate Court Entirely
Going through probate can be expensive. Court fees, filing fees, attorney fees, and other probate costs can threaten to bankrupt you. But you may be able to avoid it altogether.
There are two ways to avoid probate. The first is to hold your assets in a trust, naming the trust’s beneficiaries. This can make it easier for your immediate family members who inherit property through a trust to manage their inheritance without going through probate court.
The second option is to put some or all of your assets in joint ownership with the right of survivorship (JTWROS). That means that when you die, ownership transfers immediately from yourself and any co-owners into the hands of the living people who own it—which can also eliminate an expensive court process.
Additionally, in community property states like California or Texas, if you died and were married at any time during your life (even briefly), then half of all assets acquired during the marriage belong equally to both husband and wife even though only one spouse may have paid for them initially (this ensures that the other spouse gets their share when the other passes away).
These are all things to consider when building an estate plan.
How a Probate Attorney Can Help You
A probate lawyer can help you with several tasks related to your estate.
- Estate planning. They can help you create an estate plan that allows you to keep control of your assets in the event of death or incapacity.
- Estate administration. They can assist with the probate process itself. This includes filing documents and naming living trustees and executors for any trusts created during your lifetime.
- Intestate succession. If there is no will, then a probate lawyer will be responsible for winding up all aspects of an intestate estate, including paying off creditors and distributing remaining assets according to state law (known as “intestate succession”).
If you want to avoid probate entirely, it’s important to consider the options. Probate can be a long and expensive process—and one that requires a lot of work on your part. An experienced probate lawyer can save you time and money by handling all the details.
Contact our attorneys at The Simone Law Firm today for a consultation.
Author Bio
Michael Simone is the Founder and Managing Partner of the Simone Law Firm, an estate planning law firm in Cinnaminson, NJ. With more than 20 years of experience in criminal defense, he has represented clients in a wide range of legal matters, including estate planning, elder law, probate, real estate, and business law.
Michael received his Juris Doctor from the Rutgers University School of Law and is a member of the New Jersey Bar Association.
