Estate Planning | Making a Difference One Family at a Time

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avoid probateIf someone close to you recently passed away, you are undoubtedly going through the grieving process that follows a loss. The last thing you may want to focus on is the need to administer the decedent’s estate. If it appears that you are the logical person to do so, however, you will need to devote some of your time and energy to the process. If the decedent died intestate, or without a Last Will and Testament, you may be wondering if the estate is required to go through probate. As you will discover, the presence or absence of a Will is not the deciding factor when it comes to determining if an estate can avoid probate in Connecticut.

Probate Basics

Probate is the legal process that is often required following the death of an individual. Probate serves several functions, including:

  • Ensuring that the decedent’s assets are identified, located, and secured.
  • Authenticating a Last Will and Testament submitted for probate.
  • Litigating challenges to the Will.
  • Notifying creditors of the estate and providing the opportunity to file claims against the estate.
  • Calculating and paying any gift and estate taxes owed by the estate.
  • Transferring assets to the intended beneficiaries and/or heirs of the estate.

For the most part, issues related to the probate of an estate are governed by state laws. Consequently, both the probate process and the rules that determine when probate is required can vary from one state to another. Whether probate is required, and which type of probate you must use, will depend on several factors, including the size of the estate, your relationship to the decedent, and the type of assets involved. Most states, including Connecticut, do offer alternatives to formal probate for small estates. Because formal probate can be time-consuming and costly, it is always a good idea to determine if an estate can avoid formal probate if you are in charge of administering the estate.

When Can an Estate Avoid Probate in Connecticut?

It is a common misconception that the presence or absence of a Will determines the need for probate. Almost all estate require some type of probate, whether a Will was executed by the decedent or not. The real question people generally want to ask is whether the estate can avoid formal probate or administration. “Administration” is the term used when a decedent dies intestate, or without a Will. This proceeding appoints an administrator to administer a decedent’s estate and allows court oversight of the estate administration process. Probate refers to an estate that does include a Will. In general, probate and administration are essentially the same procedure with the most important difference being that when an estate goes through probate the Will submitted to the court must be authenticated.

Like most states, Connecticut does offer an alternative to formal probate for small estates that qualify. For an estate to use the small estate alternative the estate cannot include real property owned individually or as a tenant-in-common AND the value of the estate cannot exceed $40,000. Put another way, if the decedent owned real property that did not pass automatically outside of the probate process, formal probate (or administration) is necessary. Likewise, if the total value of probate assets exceeds $40,000, formal probate (or administration) is necessary. Keep in mind that non-probate assets are not included when calculating the value of an estate. For example, proceeds of a life insurance policy or assets held in a trust do not count because those assets are non-probate assets that pass to the beneficiaries outside of the probate process. Real property that is jointly owned with rights of survivorship will also pass automatically, outside of the probate process, to the co-owner(s) upon the death of an owner. When an estate qualifies for the small estate alternative, an affidavit may be used to transfer estate assets.

Contact Connecticut Probate Attorneys

For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns about the probate of an estate, contact the experienced Connecticut probate attorneys at Nirenstein, Horowitz & Associates, P.C. by calling (860) 548-1000 to schedule an appointment.

Barry D. Horowitz, Estate Planning Attorney
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