Who needs probate? Part 1: Guidelines

As we discussed in another article, after a loved one passes away, his or her property automatically becomes part of an “estate.” Probate then transfers that property from your loved one’s estate to your family.

So, which estates need probate?


Such a “one-size-fits-all” answer does not help very much, though. Every estate is different, and different kinds of property present unique needs. Regardless, it is still helpful to consider some general guidelines.

Generally speaking, probate is typically necessary if a loved one owned real property and passed away:

  • Without a Will
  • With an invalid Will
  • With only a valid Will
  • With a valid Will that cannot be found
  • With a valid Will of which only a photocopy can be found
  • With a valid Will and four years have since elapsed
  • With a valid Will and with an invalid Trust
  • With a valid Will and with a valid Trust into which some property was not transferred and held
  • With an invalid Will and with an invalid Trust
  • With only an invalid Trust
  • With an incompletely-funded Trust

How, then, do these different scenarios affect the process?

The easiest, fastest, and least expensive probates result when a valid Will is in place (and when the original is available). It is even relatively straightforward to probate a valid Will for which only a photocopy can be found (though not preferable or advisable). If your family finds itself in these situations, you will be pleasantly surprised by how simple, efficient, and reasonably-priced the probate process actually is.

Conversely, more challenging, less efficient, and more expensive probates result when there is no Will, when the Will is invalid, or when there is only an invalid or incompletely-funded Trust. If your family finds itself in this situation, please do not be discouraged! You will still successfully manage one of these more challenging—yet very feasible—probates and safely transfer your loved one’s property to your family. It will just require a bit more patience.

These general guidelines provide a good starting point for determining whether or not your family needs the probate process, and how it practically works. For a more in-depth discussion, please feel welcome to read Part II of this series, which explains the “Estate Examination” process.