If there are no assets listed in a will, probate isn't necessary. Depending on state laws, however, the "last will and testament" may need to be recorded even if there aren't any assets. You'll typically need to complete an affidavit if the assets mentioned in the will weren't owned by the decedent at the time of death.
Probate is a court process that occurs after someone dies. The process includes proving the will is valid, inventorying assets, appraising property, settling debts, paying taxes and distributing remaining assets to beneficiaries. Assets the decedent owned at the time of death are considered part of his estate. The will is used to determine how assets in the estate are distributed after all the debts are paid. If there's no will, the state law defines how any remaining assets are divided. If the estate is insolvent, which means the debt is greater than the assets, some people opt to go through probate to have the debts discharged. However, probating an insolvent estate isn't required in most states and can lead to high attorney fees for the decedent's relatives.
Certain assets are exempt from having to go through probate. If the decedent has only exempt assets, probate isn't necessary. Examples of assets that bypass probate include:
- Payable-on-death bank accounts
- Retirements accounts, such as a 401(k) or IRA with a designated beneficiary
- Transfer-on-death securities, including stocks, bonds and brokerage accounts
- Real estate titled with rights of survivorship
- Assets in an irrevocable trust
The beneficiaries must be named in the documents for the assets to avoid probate. For example, you'll need to complete a form at the bank to name beneficiaries on your accounts. Creating a will isn't enough.
A will is used to specify the decedent's wishes. However, if she has debts and assets subject to probate, the state laws can determine exactly who gets what. If there aren't enough liquid assets to cover debts, the court can order the sale of property. Contact the probate court in the county where the decedent lived to determine if you'll need to file the will without assets. If it does have to be filed, let the probate court know that to your knowledge, there are no assets.
Jeannine Mancini, a Florida native, has been writing business and personal finance articles since 2003. Her articles have been published in the Florida Today and Orlando Sentinel. She earned a Bachelor of Science in Interdisciplinary Studies from the University of Central Florida.