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Do All Estates Have to Go to Probate - morgan and morgan
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Do All Estates Have to Go to Probate?

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Do All Estates Have to Go to Probate?

“If there is a will, there is a way.”

The saying refers to the important role determination plays to get things done. In the world of estate planning, a will defines the distribution of assets and probate is the “way” the terms of a will get enforced.

After a loved one dies, the remaining family members address the issues surrounding the settlement of the deceased’s estate. Probate represents the formal legal process that distributes the assets according to a will, which is an integral part of an estate plan. If there is a will, the probate process moves along relatively smoothly, but on the other hand, a lack of an estate plan can lead to a long, complex probate process that can take more than a year to resolve.

Do all estates have to go to probate? The answer is no because a statute does not exist that makes probate a mandatory process for settling estate plans. Nonetheless, going through the probate process ensures the right assets get distributed to the right beneficiaries. If a loved one has recently died and you are about to go through the probate process, hiring a family law attorney who specializes in handling estate plan cases can help you settle a will in a timely manner.

You cannot afford to go to probate with just any lawyer. Probate requires an experienced litigator who has a thorough understanding of estate plans and how to distribute the assets listed in them. For more than 30 years, the family law attorneys at Morgan and Morgan have helped clients navigate the probate process, even for cases where the deceased did not leave a will behind. Our probate lawyers also help you answer the question, “Do all estates have to go to probate?”

Schedule a free case evaluation with one of the highly-rated family law attorneys at Morgan and Morgan to ensure every one of your loved one’s wishes is met during the probate process.

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  • What Is Probate?

    Probate represents the legal process of distributing the assets of a deceased loved one to the proper beneficiaries. Depending on state law, not every estate plan requires probate to distribute assets. A probate court takes charge of the legal proceeding, as well as designates an executor of the estate to distribute assets to the right heirs. The executor locates every asset listed in a will to pay off the debts of the deceased before distributing the assets.

    Most states have established a minimum value for an estate to go through a mandatory probate process. If your loved one’s estate’s value falls below the minimum value established by the state where you live, you do not have to go through probate. This means the answer to the question, “Do all estates go through probate?” is no. Addressing the complicated legal issues that arise after the death of a loved one can be overwhelming. By working with one of the family law attorneys at Morgan and Morgan, you can go through the probate process knowing your legal counsel has your best interests in mind.

  • What is the Probate Process?

    When you meet with a lawyer from Morgan and Morgan for a free case evaluation, you can expect the attorney to provide you with a detailed description of the probate process. The following is a summary to give you a head start before your free case evaluation.

    File a Petition

    The first step in the probate process involves filing the deceased loved one’s will with the probate court. Your family law attorney also files a petition requesting the appointment of an executor who acts on behalf of the deceased’s estate. Every beneficiary receives notice of the petition after the petition is filed with the probate court. Beneficiaries have the right to challenge the will or the filing of a petition to settle the estate. Any challenges to a will are best addressed by an experienced probate attorney.

    Locate Assets and Identify Debts

    After appointing an executor of a will, the executor becomes responsible for completing the remaining steps of the probate process.

    First, the executor has to locate every asset listed in the will of the deceased loved one. Assets include vehicles, investments, bank accounts, and real estate. Second, the executor identifies and settles the outstanding debts owed by the deceased loved one. Debts include mortgages, credit cards, medical bills, and utility bills. Third, the executor must file a final tax return for the deceased loved one by referring to the documents discovered when locating assets and identifying debts.

    Distribute Assets

    After the executor settles every outstanding debt, the time has arrived to distribute the net assets. If your attorney has access to a will, the assets get distributed according to the wishes written in the will. On the other hand, the state where you live decides how to distribute the assets if there is not a will. After the distribution of assets, the court receives a document that describes the status of the estate. This includes listing the assets distributed, as well as the debts settled by the executor.

  • Can I Avoid Probate?

    Do all estates have to go to probate? The answer is no, and the main reason why avoiding probate might be a good idea is because the process is both costly and time-consuming. Depending on state law and the deceased’s stipulation as written into a will, beneficiaries can avoid probate by distributing assets outside of a probate court. You can also avoid probate if the deceased created a living trust. Setting up a living trust requires thorough planning by taking into account past, present, and estimated future earnings, as well as the accumulation of debts and assets. Finally, a deceased loved one can leave some assets out of a will, which means beneficiaries have no way to assume control of the assets by going to probate.

  • What Are the Most Common Legal Issues Associated With the Probate Process?

    Several issues can arise during the probate process, which is another reason why it is a good idea to hire a state-licensed family law attorney to represent you during the entire process. Conflicts between creditors and beneficiaries are a common problem because beneficiaries think they deserve more of a deceased loved one’s estate. There might not be a legally valid will or worse, the deceased created multiple wills. Creditors can make unwarranted claims against assets and family members not listed in a will can dispute the will during the probate process.

    More complex issues arise when business assets are a part of the distribution process. If a business must be sold or managed to account for the distribution of assets, a probate lawyer helps settle the issues of asset distribution. Perhaps the probate court cannot locate one or more beneficiaries to distribute assets in accordance with the wishes of the deceased. Another common dispute arises over the value of the estate, which the family law attorney that you hire from Morgan and Morgan verifies by calculating the value of assets minus the value of outstanding debts.

  • What Disputes Might Arise During the Probate Process?

    Because disputes are common during the probate process, hiring an experienced family law attorney from Morgan and Morgan ensures you handle each dispute the right way.

    Elder Financial Abuse

    Unfortunately, elder financial abuse is far too common when creating an estate plan. According to the National Council on Aging (NCOA), the financial losses associated with elder financial abuse exceed $36 billion. A family member who has power of attorney over a vulnerable senior can exploit the senior financially by transferring and/or liquidating assets without the consent of the senior.

    Improperly Executing a Will

    Although the intent of a deceased loved one passes every legal test for distributing assets, just one minor error regarding the execution of a will can make the will legally invalid. Incomplete sections, incorrect signatures, and improperly drafted language all represent factors that legally invalidate a will.

    Undue Influence

    Probate courts look unfavorably on family members that apply pressure on the creator of a will. This includes persuading the creator of a will to make changes that financially benefit a family member. A probate court has the power to invalidate a will if the court discovers one or more family members applied undue pressure on the creator of the will to make changes.

  • How Do I Find the Right Probate Lawyer?

    What do the family law attorneys at Morgan and Morgan bring to the table that separates us from other law firms that provide legal support during the probate process?

    Thorough Knowledge of State Law

    Since probate laws depend on state law, it is important to hire a family law attorney who has a deep understanding of the probate laws applied by the state where you live. For example, the rule of asset distribution in Florida differs from the rule of asset distribution in Colorado. With a nationwide presence. Morgan and Morgan represent clients living in each of the 50 states, which is something our competitors cannot claim.

    Specializes Probate Law

    Family law encompasses a wide variety of practices, which means you want to hire a lawyer who specializes in handling cases that go to probate. An attorney who specializes in litigating legal issues surrounding wills, trusts, and estates is the type of attorney you want to handle your probate case. Another reason to hire an experienced probate lawyer is the rapid pace at which probate laws change. 

    Responsive Communicator

    Because the probate process is often complex, you want to work with a highly-rated family law attorney who responds to communication promptly. Morgan and Morgan offers a 24-hour hotline to answer general questions that pertain to probate law in the state where you live. For questions germane to your particular case, you should receive answers no more than 24 hours after leaving a phone message, as well as sending an email or text message. 


    Reading the reviews left by clients on sites such as Yelp and Google provides you with insight into the reputation of a probate lawyer. Because of our three decades of experience, Morgan and Morgan has received hundreds of positive reviews that praise our commitment to helping clients receive the assets they deserve to receive under the terms of a will or trust.

    Schedule a free case evaluation today with a probate attorney at Morgan and Morgan to learn more about the process.

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Last updated on Oct 06, 2022

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