Do You Need Probate if You Are the Sole Heir?
- In common usage, "probate" is used to refer to most aspects of settling the estate of the deceased, even if the deceased should not leave a will. But in legal terms, actual probate refers only to the process of determining whether a will is legally valid. The executor, typically designated by the deceased before death, presents the will to a court. The court examines the will and, if necessary, hears evidence or examines documentation from interested parties. If the court approves the will, the executor will be free to begin settling the estate.
- If the probate court finds the will invalid, then the property that was included in the will becomes "intestate property." For intestate property, rules of inheritance will take over. Those who are the natural descendants of the deceased, known as "heirs," typically divide the intestate property among themselves. U.S. jurisdictions can be broadly divided into three systems of inheritance: per stirpes, per stirpes with representation, and Waggonerian inheritance. These three systems differ in their divisions of intestate property, but in general, every line of descendants that has at least one living member will be entitled to some portion of the property.
- If an individual is the only living heir along every bloodline descending from the deceased, he may be entitled to inherit the entirety of the intestate property. However, potential heirs should keep in mind that in some jurisdictions, half-relatives and adopted children have certain rights as heirs, as well. Potential heirs must typically present themselves as heirs and receive approval from the probate court, and each jurisdiction will require certain documents and perhaps evidence of relation to the deceased.
Property Outside Probate
- Certain estates, as well as certain forms of property, may allow a sole heir to avoid probate. Probate is mostly governed by state law. Some jurisdictions set a minimum level of assets, and small estates that come in under this level need not pass through probate at all. Inter vivos trusts and other non-testamentary instruments, including payable-on-death arrangements, don't need to go through probate. In addition, many jurisdictions offer a simplified probate process for less complex estates.