Summary Probate for "Small Estates": Legal Overview

Here's what to expect if the estate you're administering is eligible to use streamlined "summary probate" procedures.

Simplified or “summary” probate proceedings for small estates are just what they sound like: a simpler version of regular probate. If you’re an executor, using summary probate can save you and surviving family members time, money, and effort.

Which States Offer Summary Probate

Every state but Delaware and Virginia offers a summary probate procedure that can be used under certain circumstances.

Who Can Use Summary Probate

Every state has its own rules about when summary probate is available and when formal probate must be used instead.

Small Estates

Most states determine eligibility for summary probate by the size of the estate: “small estates,” as defined by state law, can use the simple procedure, and larger ones cannot. For example, in New York, an estate worth less than $30,000 qualifies; in Nevada, the limit is $200,000.

Most states don’t count property that wouldn’t go through probate anyway—for example, property held in a living trust, in joint tenancy, in a payable-on-death (POD) bank account, or in a retirement account for which a beneficiary has been designated. That means that summary probate is often available even if the entire estate is quite large.

Some states don’t require you to add up the amount of the estate assets, however. In these states, summary probate can be used if the estate will all go to the immediate family (as a “family allowance” under state law) and to pay certain high-priority debts, such as expenses of the funeral and last illness. The logic is that if there’s nothing left for other creditors, and no one is arguing about where the money goes, there’s no need for a formal probate proceeding.

Other Restrictions

Some states have other rules about who can use summary probate. Some conditions imposed by various states include:

  • the surviving spouse must inherit everything
  • there must be no will
  • all the heirs must agree on how to divide property.

Other Ways to Qualify

Several states allow summary probate if the deceased person has been dead for a certain period of time—for example, two years in Florida, or five years in Oklahoma. Again, the rationale is that by this time, creditors have probably either been paid or have moved on.

Why would anyone wait so long to start probate proceedings? The situation tends to come up when one spouse dies, and the survivor doesn’t take steps to officially transfer property to his or her name. Then, when the second spouse dies, the executor must take charge of two estates instead of one.

The Typical Summary Probate Process

Probate procedures, whether they’re the formal or the abbreviated “summary” kind, vary quite a bit from state to state. Each state has its own rules about what papers must be filed, what notices published, and how long the process takes. That said, here’s a general outline of the process you’re likely to encounter.

Getting Started

The executor named in the will, or the surviving spouse or other close family member, files a request (often called a petition) with the local probate court, asking for summary probate. Some states provide fill-in-the-blanks petition forms. The petition states that the estate qualifies for summary probate under state law—for example, that the total value of estate assets is under the small estate limit.

Depending on the circumstances, the petition may also need to state that:

  • the will is valid, to the best of your knowledge
  • you’ve looked diligently but can’t find a will, or
  • no formal probate proceeding is being conducted

Several documents will probably need to be attached to the petition: the will, if any, a list of all heirs (people who inherit under state law if there’s no valid will), and an inventory of the property left by the deceased person.

Giving Creditors Notice

Next, the petitioner may be required to publish a notice of the proceeding in a local newspaper. Not all states require this step, which is intended to give creditors a chance to come forward with any claims.

Waiting

There is generally a waiting period, designed to give creditors time to file claims, but it’s shorter than with regular probate. A month or two is common.

The Final Paperwork

You’ll need to submit some kind of document that shows the court that you’ve paid debts and taxes, and that you’re ready to distribute the assets. In some states, you may need a “tax clearance” from the state showing that state taxes have been paid. Then you can close the estate, and you’re done.

Will You Need a Lawyer?

The answer depends on how complicated your state’s procedures are and how much help the state courts offer. If your local court provides forms and instructions (and even better, helpful court clerks), you may be able to get by without any legal advice. But if you have a complicated situation—unusual assets or bickering family members, for example—you’ll probably want some expert help. You may just need a meeting or two with an experienced probate lawyer who’s willing to answer questions while you do the paperwork yourself. In any case, you’ll spend much less on attorney’s fees than you would if you needed to conduct a regular probate court case.

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