Is it necessary/advisable to probate my fathers will?

Non-investing personal finance issues including insurance, credit, real estate, taxes, employment and legal issues such as trusts and wills.
Post Reply
Topic Author
GeoMetry
Posts: 243
Joined: Mon Jan 31, 2011 7:26 pm

Is it necessary/advisable to probate my fathers will?

Post by GeoMetry »

My father passed away last year. In his will he left everything to my mother. It is a simple estate, one house (JTWROS) two old cars, two IRAs and a brokerage account at Fidelity. The accounts at Fidelity are now in my mothers name. No trusts, no previous marriages. I think the cars may be in my fathers name. Total value of the estate probably around $3.5 million. Is it necessary to probate my fathers will? Advantages/disadvantages?
User avatar
quantAndHold
Posts: 10141
Joined: Thu Sep 17, 2015 10:39 pm
Location: West Coast

Re: Is it necessary/advisable to probate my fathers will?

Post by quantAndHold »

It's not an optional thing. You either need to or not, depending on the level of assets and how things are titled. Check with your county probate court. Or your county probate court's website.

On the surface of it, probably not if everything is either JTWROS or POD/TOD, but at the very least you'll need to change the title on the cars.
bsteiner
Posts: 9208
Joined: Sat Oct 20, 2012 9:39 pm
Location: NYC/NJ/FL

Re: Is it necessary/advisable to probate my fathers will?

Post by bsteiner »

She may want to file an estate tax return to elect portability in case her estate is above the estate tax exclusion amount at her death. It's presently $11,580,000, but it's scheduled to revert to half that amount (indexed) in 2026. Of course, there's no way to know what Congress may do, nor what her estate will be worth at the time of her death.
User avatar
Kenkat
Posts: 9549
Joined: Thu Mar 01, 2007 10:18 am
Location: Cincinnati, OH

Re: Is it necessary/advisable to probate my fathers will?

Post by Kenkat »

How the cars are handled will vary by state law. Some states allow transfer to the surviving spouse under certain conditions; you will have to research the rules for your specific state to see what the process is.
senex
Posts: 1087
Joined: Wed Dec 13, 2017 3:38 pm

Re: Is it necessary/advisable to probate my fathers will?

Post by senex »

Sorry for your loss.

Many states have "small estate" probate procedures with little or no court involvement. Sometimes it is just an affidavit, and you never need to file anything with any court. Disadvantages of probate depend on state, but even in "easy" states it requires paperwork, fees (amounting to a few hundred to a few thousand in the cheapest states, I think), some of your info published in public records, and waiting months for resolution.

Small estate affidavit might be perfect for the old cars, assuming their age puts their value below your state's threshold. ("small" refers to the size of the probate estate, which is not the entire estate -- it is only the stuff owned solely by the deceased and without a tod/beneficiary designation. Based on what you listed, that's probably only the cars).

bsteiner's recommendations are always worth strong consideration. It will cost a few thousand dollars for a law firm to file estate tax portability (form 706), and it takes a fair bit of paperwork (you must detail every asset owned by deceased and its value at date of death, including jointly owned assets). You can file 706 whether or not you do probate. You have 9 months from date of death to file, and can get a one-time extension if required. It is hard to estimate its value, because estate tax exemptions have varied from $600k to infinity within the last few decades. But if exemptions were to be lowered a lot, and your mother's assets were steady or grew, then the ported exemption could potentially save 6- to 7-figures of estate tax.
notmyhand
Posts: 496
Joined: Mon Jul 15, 2013 7:43 pm

Re: Is it necessary/advisable to probate my fathers will?

Post by notmyhand »

Not an attorney but I track down heirs as a part of my living and will leave you with the one I dealt with this week -

Some mineral interest passes down to the heirs of an aunt. Aunt is currently deceased so it should go to her heirs. She has a will that leaves everything to her sister instead of her daughter. However, the family never probated the estate because she had no assets outside of beneficiary accounts. So currently her interest passes down via intestate succession and passes onto her daughter, who is in jail for murder and prostitution. The family is now scrambling to try and find the original will and figure out what to do as it was never the aunt's intent to leave anything to this daughter.

A will, in all of the states I am familiar with, is not valid until it's probated. So if it's inexpensive to do, may benefit heirs in the future.


And I run into these every week.
aristotelian
Posts: 12277
Joined: Wed Jan 11, 2017 7:05 pm

Re: Is it necessary/advisable to probate my fathers will?

Post by aristotelian »

Was the house jointly owned and investment accounts TOD? If the actual estate is under your state limit you can waive probate. Still should consult an attorney.
Katietsu
Posts: 7676
Joined: Sun Sep 22, 2013 1:48 am

Re: Is it necessary/advisable to probate my fathers will?

Post by Katietsu »

We had parents and in laws pass with a similar circumstance. No estate was opened on either side when first spouse passed away. In their states, a car could be retitled to surviving spouse with just a death certificate. On one side, bsteiner’s advice was followed to allow for possible portability even though it will not be needed if estate limit stays at current levels. Note that the estate tax form was filed with IRS without an estate being opened with the state. The cost charged via a law firm was $700 for the filing.
Post Reply