We often get calls for a probate attorney for people that are not sure if they even need a probate.

Often they don’t because the “probate estate” is small enough that they can use a small estate affidavit to get access to the account they are trying to distribute.

The first thing one needs to know when determining if the estate is small enough that no probate is needed is the probate estate.

The probate estate is defined as those assets that are actually subject to probate.

What does that mean?

Anything that passed via a beneficiary designation (life insurance, retirement account, brokerage account, etc.) is NOT part of the probate estate.

Anything that passed via transfer on death designation (real estate, bank accounts, etc.) is NOT part of the probate estate.

Once you figure that out, if the probate estate is less than $100,000 you can use the small estate affidavit to access the account.

What is the small estate affidavit?

That’s a topic for another post! 🙂

Cheers,

Christopher Small
Estate Planning Attorney

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