Probate a Will
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What Does it Mean to “Probate a Will”?
To “probate a will” means to establish the legal validity of a will document. The will must be proven to be a genuine legal document before any property distributions can be made to the beneficiaries named in the will. Thus, the probate process exists in order to determine if a document is actually a genuine will or not.
If a court finds the will to be legally acceptable, it is said to be “admitted into probate”, which means that the process for distributing the estate property can begin. These types of matters are generally initiated and overseen by the will executor, who is usually named in the will. A will usually can’t be put into action until it is formally admitted into probate.
How is Probate of a Will Accomplished?
Probate begins when a person files with the probate court in order to initiate the process. At the outset, they will be required to present the original will document to the court. A copy of the document usually won’t suffice, unless there is a legitimate reason that the person is presenting a copy.
The filing can be done by any person, not necessarily the will executor (although it’s usually the executor who is holding the physical will document). Also, the probate filing needs to occur within a certain time period after the person’s death.
In any formal probate proceeding, certain matters must be determined and established by the court before the estate can be evaluated and the properties distributed. For instance, the probate will usually need to establish:
- The death of the testator, and the facts related to their death
- The state of residence of the deceased person (this can affect how the property is distributed)
- Whether the will is genuine or not
- Whether the entire will conforms with state statutory requirements
- Whether the creator of the will was legally and mentally competent at the time the will was created
Once these facts are established, the executor can begin performing their duties as outlined by state probate law, and according to any specific requests in the will itself. These may include: identifying the estate property and money; identifying and contacting the recipients of the distributions (i.e., the “beneficiaries”); handling any property debt and property taxes; and many other related matters.
Is Probate of a Will Always a Straight-Forward Process?
The probate of a will is not always a straight-forward process. In fact, the probate process can often be the most complicated time in terms of property distribution and other matters. This is the time period when all sorts of legal issues are raised, such as a will contest or a will dispute. Different kinds of lawsuits can arise between various parties.
For instance, one party may be claiming that they should be receiving a certain property item as opposed to a different party. Or one person may be contesting the amount of monetary funds that they will be receiving under the will. Since the testator is no longer around to clarify such matters, it’s important that the will be written very clearly in order to minimize the amount of conflicts during probate. Also, it’s important that the will executor be competent as well as knowledgeable of the deceased person’s intentions.
Will contests are generally resolved through a legal proceeding between the parties in conflict. In some cases, the testator may include a no-contest clause in the will. This is a clause stating that the beneficiaries will only be eligible for a distribution if they agree that they won’t challenge any will provisions.
Do I Need a Lawyer for Help on How to Probate a Will?
Getting a will probated is a very important step for the correct handling of an estate. If you need assistance with a will document, or with the probate process, you may wish to contact a lawyer immediately. A qualified wills and probate attorney in your area can provide you with legal guidance and assistance. In addition, your lawyer can represent you in court if you need to file a claim over the will document.
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Last Modified: 08-25-2014 03:27 PM PDT
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