Must a Will be probated if the decedent’s estate was depleted by health costs and the assets are now less than $60,000?

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Must a Will be probated if the decedent’s estate was depleted by health costs and the assets are now less than $60,000?

The estate has assets are less than $60,000, not taking into account thousands in health costs incurred by the decedent’s past hospital bills. Since the executrix (the decedent’s wife) paid some of the decedent’s substantial past bills with her own funds, she has been left with a minimal amount on which to survive. The decedent named among his beneficiaries in the Will, not only his wife, but his children. Now the attorney for those children (both children and attorney are located in another state) are demanding that the Will be probated. I realize that probate is required if any of the decedent’s estate assets did not pass by operation of law. The wife feels that she will be forced into bankruptcy if the will is probated.

Asked on August 7, 2011 Colorado

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

In order to pass assets of an estate given by a will, the will must be probated. In California as well in may other states, there is a probate process that is much quicker than the ordinary probate process if the decedent's estate is less than a certain dollar amount subject to a probate, for instance, less than $100,000.

In such a situation, the filings for the probate, the time to close the probate and the amount of time insurred for a small estate is greatly reduced. Fees of the executor and attorney who handle the probate are set by statute which is a percentage of the amount of the estate.

Since most attorneys handle probates on the statutory fee basis to be paid at the end of the proceeding, the widow in your situation should not be be overly concerned about the costs. I suggest she consult with an experienced probate attorney about her situation.

Good luck.


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