Does having a will mean the estate goes through probate?
Key takeaway
No. A will alone does not determine whether full probate administration is needed. State law, asset ownership and available small estate procedures matter.
Admission of a will and full administration are different questions
In Delaware, a will must be declared valid by admission to probate to prove a property transfer or nominate an executor. Proof occurs before the Register of Wills in the county where the person who made the will was domiciled at death.
If that person was not domiciled in Delaware, proof may occur in any Delaware county containing their goods, personal property, rights, credits or land.
Start your discussion with two questions: what must happen to the will, and which procedure fits the estate?
A smaller estate may have another procedure
In Minnesota, for example, a successor can collect personal property by affidavit once 30 days have elapsed after death, if the entire probate estate, valued at death wherever located, is no more than $75,000 after liens and encumbrances.
The calculation includes any contents of a safe deposit box. No application or petition to appoint a personal representative may be pending or have been granted in any jurisdiction.
A certified death record and the required affidavit must be presented. Other states differ.
For your own review, gather the will, an asset list, ownership records and information about any appointment application. Ask which state procedure applies before assuming that a will answers the probate question.
Two related terms
Probate. In the Delaware rule above, probate is the admission that declares a will valid.
Personal representative. In Minnesota, for example, this fiduciary settles and distributes the estate under an effective probated will and applicable law, acting prudently. Appointment by the court or registrar, qualification and issued letters are required before acting, and other states differ.
Frequently asked questions
Does informal administration mean there is no court proceeding?
No. In Wisconsin, informal administration covers estates with or without a will and proceeds without continuous court supervision.
It remains a circuit court proceeding, with records kept in the same manner as formal proceedings. This definition does not establish eligibility to use the procedure.
Does delivering a will to court satisfy the appointment requirements?
No. In Minnesota, for example, delivering a will alone does not provide the required appointment and letters, and other states differ.
After the person who made the will dies, its custodian must deliver it reasonably promptly to an appropriate court when an interested person requests delivery.
Sources
- Delaware Code, title 12, §1302: admission of a will and the county where it is proved.
- Minnesota Statutes §524.3-1201: collection of personal property by affidavit and its conditions.
- Minnesota Statutes §524.3-103: appointment, qualification and letters.
- Minnesota Statutes §524.3-703: duties of a personal representative.
- Minnesota Statutes §524.2-516: delivery of a will by its custodian.
- Wisconsin Statutes §865.01: informal administration as a circuit court proceeding.