When a person dies, there must be some way of determining how the property that the person owned at the time of death gets transferred to the new, rightful owner of the property.  Sometimes, especially when the person dies without owning a lot of property, and the property has very little value, there are informal mechanisms that are used to transfer ownership.  When an elderly husband dies, everyone would probably agree that the “pots and pans” in their home should automatically be owned by his surviving spouse, and that she can go on using these household items without dispute or disruption.

When the asset has more value than “pots and pans”, however, the process can become more complicated.  What about the house where the wife and deceased husband were living at the time of his death?  Can she automatically continue to live there? What if there is a mortgage on the home?  If there is a mortgage, must the mortgage be paid, or did the need to make the mortgage payment to the bank cease with the death of the husband?  These are the kinds of questions that “probate law” is concerned with.

Frequently Asked Questions

What is “probate”?  In general, probate is the legal process that determines who should legally receive a deceased person’s property, and what bills that were unpaid at the time of the person’s death must legally be paid. Each state has its own “probate” laws.

Is probate always required when a person dies?  No, probate is not always required – in fact, it is often not needed.

What determines whether probate is required as a result of a person’s death?  It can be somewhat complicated to determine when probate is required.  Generally, the question of whether or not probate is required is determined by the answers to the following questions: what was the value of the property that the person owned at the time of death, and how was “title” to the property held?

Why is the value of the property important in deciding whether or not probate is required? One of the primary reasons that the value of the property is important is because there is an alternative way to transfer the property if the value of the property to be transferred at the time of a person’s death is under $100,000.

How does the property get transferred if its value is under $100,000.00?  The most common way for property to be transferred, if the total value of all the personal property is under $100,000.00, is the “Small Estates Affidavit”.  Note that we are talking about the total value being less than $100,000.00, and that it relates only to “personal” property, as opposed to “real property”.  The term “real property” generally translates to “real estate”.  If the value of the personal property is under $100,000.00, the court probate process can still be used, and sometimes probate is recommended, even with small estate.