Is Probate Inevitable? A Potentially Simpler Alternative

I was recently asked the following question by an individual who was looking for some guidance on wrapping up his father’s affairs after he had passed away:

Question: My father owned a car and that’s it. His last utility bills and furniture bill are all the debts I know of. His medical bills are almost taken care of, so do my sisters and I have to find an executor?

Answer: Many states (including Utah) have attempted to simplify the probate process for the survivors of individuals who die owning relatively small amounts of property.

In such states, the process is sometimes referred to as "small estate proceedings" or a similar term. Often the process requires the preparation of an affidavit (a sworn statement) by a family member or other “successor” to the estate stating that the individual has died and that no other probate proceeding has been initiated in the court system to handle the distribution of that person's property, and that the person providing the affidavit is entitled to collect and distribute the property. The requirements vary from state to state, so be sure to check the laws of the state where the property is located. Such an affidavit can then be provided to banks, financial institutions, or other custodians of the deceased person's property in order to collect the property and distribute it to the heirs of the deceased.

You will need to check the laws of the state in which the deceased owned the property to determine (1) whether small estate proceedings are available to you, (2) what qualifies an estate for such simplified administration (for instance, in Utah, after subtracting debts, taxes, etc., there must be less than $100,000 worth of personal property and no real property in the estate before it will qualify for small estate proceedings), and (3) what the statutory requirements for completing the process are.

A probate attorney in the appropriate state should be able to quickly help you determine whether such a process is available to you. Often, state probate court websites even provide the legal forms that someone can use to complete the process on their own. Although it is a simple process (relative to a full-blown probate), you must nevertheless exercise great care when handling the property of a deceased individual, including a family member. I strongly recommend consulting with an experienced probate attorney before taking any action with regard to the estate.

Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.