This is not a simple question to answer, and requires that many other probate questions be answered to make a decision. However, it is possible to provide some general advice.
If a person dies with no property or outstanding debts, then there is nothing for the courts to oversee. You may think this is not common, but to qualify for Medicaid, a person must have under $2,000 of most assets to qualify. It does not take long for this $2,000 to evaporate leaving nothing in the estate.
There are also cases where everything a person has passes by operation of law at the moment of death and leaves nothing in the probate estate. Examples of this are:
- Payable on death accounts
- Vehicles with transfer on death titles (if allowed in your state)
- Beneficiary deeds on real estate (if supported in your state)
- Life insurance (Beware in Arkansas. A will may be able to change the beneficiary…)
- Retirement accounts with a personal beneficiary named
- Stocks and bonds held in a transfer on death account
In some states, you may be able to escape traditional probate if the “probate estate” is small. The probate estate consists of property that does not pass by operation of law such as life insurance, payable on death accounts, etc. Small is defined by the state. If a state has a small estate process, then the dollar value of what is considered small is set by the state. In Arkansas, small is $100,000. In Oklahoma, small is $20,000 (as of the last time these numbers were checked. As with any legal thing, check with a local attorney to find the current numbers.)
The typical process for a small estate is to file a small estate affidavit. If small amounts of real estate are involved, you will also need to have a special deed prepared to transfer title and keep the “chain of title” intact.
When a will is involved
When the estate is above the small estate limit, or a will is found, a traditional probate process needs to take place.
When no will is found
When no will is found, you will need to go through the process of intestate succession. A full description of intestate succession is beyond the scope of this post.