No probate is best, but simple or "summary" probate is better than regular probate. Whether or not the estate qualifies for the summary procedure depends on state law. A few states let estates worth a couple of hundred thousand dollars—not counting nonprobate assets—use the simpler process. If probate is necessary, the state has a relatively simple process. Probate is easier in states that have adopted the Uniform Probate Code a set of laws designed to streamline probate or have simplified their own procedures.
The estate doesn't contain a business or other complicated asset. Managing, appraising, and selling a business are all tasks that require some expertise and experience. You'll probably want expert advice. No one is fighting. If disgruntled family members want to contest the will , or are threatening a lawsuit over the will, get a lawyer's help right away.
You may be able to head off a court fight—which will consume more money and time than you can probably imagine—or at least figure out how to win it. The estate has enough assets to pay its debts. In this case, you don't have to worry about paying legitimate debts—there will still be money left over for the inheritors. But if it looks like there won't be enough money in the estate to pay debts and taxes, get advice before you pay any creditors.
For example, real estate held in joint tenancy passes directly to the surviving joint tenants. Probate is just one way to settle an estate when someone dies. And it's not always required. Illinois law permits a different and simplified procedure for handling small estates.
The simplified procedure for small estates begins with an affidavit. It must be notarized. The affidavit is often coupled with a copy of the death certificate. The affidavit can then be used to complete the distribution of property, without filing a probate case in court. With full supervision, the judge takes a more active role in the actual administration of the estate. Full supervision is what many people incorrectly think happens with all estates, and what leads to the fear that things will get tied up in probate.
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Assets held in a living trust can bypass probate, too. Probate is also unnecessary for assets for which the deceased person named a beneficiary—for example, retirement accounts or life insurance policy proceeds.
Learn more about probate avoidance. Does the estate qualify for your state's simple "small estate" procedures? It's best if no probate at all is required, but if that isn't an option, figure out whether the estate can use "small estate procedures.
In most states, these include streamlined "summary probate" and an entirely out-of-court process that requires presenting a simple sworn statement affidavit to the person or institution holding the asset.
Every state has its own rules on which estates can use the simpler procedures. But in many states, even estates that are fairly large—not counting nonprobate assets—can use the simpler processes. Are family members getting along? Will contests are rare, but if a family member is making noises about suing over the estate, talk to a lawyer immediately.
Probate lawsuits tear families apart and can drain a lot of money from the estate in the process. A lawyer may be able to help you avoid a court battle. If probate is necessary, is your state's probate process relatively simple? If the state where the deceased person lived has adopted a set of laws called the Uniform Probate Code, probate should be pretty straightforward.
In UPC states, most probates are conducted with minimal court supervision. A few other states have simplified their procedures without adopting the UPC. Does the estate contain only common assets, like a house, bank or brokerage accounts, vehicles, and household goods? Things get much more complicated when an estate includes a business, commercial real estate, or any other asset that requires special ongoing handling. You'll probably want to consult experts if you need to manage, appraise, or sell a business; these jobs aren't for amateurs.
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