What to know about wills & probate

Wills should be filed even if they aren’t probated

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Elissa SuhSenior Editor & Disability Insurance ExpertElissa Suh is a disability insurance expert and a former senior editor at Policygenius, where she also covered wills, trusts, and advance planning. Her work has appeared in MarketWatch, CNBC, PBS, Inverse, The Philadelphia Inquirer, and more.

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Key takeaways

  • A will doesn't have to be probated in some states when total value of the decedent's probate assets fall below a certain limit

  • The makeup of the probate estate and its value can help determine whether or not the will should be probated

  • Deciding whether or not to probate the will is one of the executor's first duties of estate administration

A will does not always need to go to probate. When the person who wrote the will (called the testator) dies, their executor must decide how to settle the estate, including whether or not probate is necessary. Probate is the legal process of administering the decedent's assets, and it can be straightforward, arduous, or even unnecessary — states usually offer multiple types of probate proceedings based on the value of the decedent's probate estate, so you may not have to probate the will.

However, the executor may still be required to file the decedent's last will and testament with the court or record office regardless of the type of probate administration used to settle the estate. Eventually, a will becomes part of the public record

Does a will have to be probated?

Whether or not a will has to be probated depends on the size of the estate. To calculate that value, the executor can take an inventory to see what probate and nonprobate assets make up the decedent's estate. Certain assets — living trust property and assets with a beneficiary designation, like a life insurance policy — aren’t part of the probate estate. They pass directly to beneficiaries outside of court, which makes them an integral component of estate planning.

A strong estate plan starts with life insurance

Learn more: What assets are subject to probate?

Each state has probate law that details what types of probate procedures are available and what types of estates qualify. In general, larger, more complex estates require a more formal probate process, which may even require supervision from court or the assistance of a probate lawyer. On the other hand, small estates worth less than a certain amount can avoid probate; the personal representative can use a small estate affidavit to collect the decedent's assets from financial institutions and distribute them to the beneficiaries. (Using a small estate affidavit takes the place of formal probate and requires minimal or no court involvement, depending on the state.) 

Read this guide on how to avoid probate

What if the executor does not probate the will? 

An executor who does not fulfill their fiduciary duty to an estate may open themselves up to a lawsuit, according to FindLaw. If the executor doesn't initiate probate and petition the court for letters testamentary, then they won’t have the legal capacity to handle the decedent's estate. As a result, they won't be able to pay the estate’s debts, file an estate tax return, manage the decedent's money, or fulfill many other responsibilities an executor must perform. The deceased's debts may grow or their asset may accrue unnecessary interest, which could negatively affect the estate and the inheritance left behind for loved ones. The decedent's heirs who are dissatisfied with the executor can petition the court for removal and even sue them for negligence.

Depending on the state, even when an estate is too small to necessitate formal probate, the executor may still be required to file the will with the court along with the death certificate. Purposely withholding a will is considered a crime.

See this guide to what else an executor does.

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