Probate is the legal process that ensures that the will is carried out, settles any disputes over the will/estate, and determines what happens with the decedent’s property if there isn’t a valid will. If there is no will or if the will doesn’t cover all of the decedent’s assets, then the estate will go through something called “intestacy”.
Often you need to file a petition to start probate in order to begin the process. For example, if you need to file for probate in Pennsylvania, you need to file a Petition for Probate with the local county Orphan’s court. Many states have a similar process, but you still need to research and find out your state’s exact process.
Not every person can contest a will. A will can only be contested by a person who has “standing”. This typically means the person will inherit or would have otherwise inherited if the will is proven to be invalid.
For example, the decedent’s child may contest the will, but it is unlikely that the decedent’s third cousin would have standing (especially if the decedent did not have a relationship with the third cousin).
But once it is established that the person contesting the will has standing, they must also have a valid reason. There are four reasons a person can contest a will:
- The Will Was Not Executed Properly:every state has specific requirements as to how a valid will must be signed. This typically requires the decedent’s signature and date, as well as one or two witnesses signature that attest the will was signed and is valid. If there are no witnesses or if the decedent’s signature is forged, then the will would be invalid.
- Lack of Mental Capacity: an illness like dementia or alzhemiers can impact a person’s ability to make rational decisions; decisions they would make if they were of “sound mind”. If, at the time of the will’s creation and/or at the time the will was signed, the decedent was not of sound mind and there is evidence to prove it, then the will can be invalid.
- Fraud: if the decedent was told to sign their will, but was told it was another document, then it would be considered fraud. For example, a decedent could be told that they were signing a bill or receipt when in fact they were signing their will. In this case, the will would be invalid.
- Undue Influence: sadly, many people take advantage of their proximity and time spent with a person to change that person’s will for the other’s advantage. For example, an in-home caretaker might influence their elderly patient to leave everything to them. Whether it’s through lying or manipulation, or outright deception. If the decedent leaves nothing to heirs or relatives, but all to a stranger who happens to have spent a lot of them with them in their final days, then it can raise enough suspicion for the court to take the will contest seriously.
But what happens when a will is successfully contested? If the most recent will is void, for any of the above reasons, then the court will look at any surviving copies of previous, valid wills. If the decedent didn’t make an effort to completely destroy the previous wills (something like tearing it up or burning it), then it is assumed that the previous will can apply.
If there are no other wills, then the court will treat the person’s estate as if they died without a will. Meaning that the decedent’s property/estate will be distributed to the surviving heirs according to the Laws of Intestacy.
Probate begins once the executor of the will files a petition with the probate court, along with the death certificate and a valid will (if one exists). Once the executor is approved, then they have the power to act on behalf of the decedent’s estate and the probate process can begin.
To learn more about the process and what happens next, read more about the Probate Court Process.
It is possible to avoid probate court, but it depends on the types of assets involved. For example, Washington State Probate Law says that a person’s estate must pass through probate only if the value of the estate passes $100,000. Texas Probate Law says that any community property, like a home owned in joint tenancy with right of survivorship, does not need to pass through probate.
Florida Probate Law offers “summary administration,” which essentially allows a person’s estate to go through a streamlined version of probate. However, this only applies to decedent whose death occurred more than two years ago and had an estate valued at less than $75,000. In under Georgia probate law, it is possible to avoid probate if all heirs who would inherit agree as to how the estate should be divided.
But, overall, each state has separate requirements as to what must go through probate court and what can skip the process. Since probate requirements can overlap, as well as vary from state to state, it is best to contact a local wills, trusts, and estates lawyer to understand what would apply in your situation.
In the event that the decedent’s estate goes through intestacy, meaning they died without a valid will, then the breakdown of inheritance (and how much) can vary depending on the type of relationship between the deceased and the person who hopes to inherit. Here are the most common ones:
- Spouses: so long as the couple was legally married, then the surviving spouse receives at least half of the estate. They may receive the entire estate if the decedent has no other living heirs, like no children or grandchildren.
- Parent to Child: if the parent does not have a legal spouse at the time of their death, then the parent’s living children will split that amount equally. If one of the children died before the decedent, but have no heirs (such as children), then whatever they would have received would be shared between the remaining siblings. This would not include any step-children or any other children that are not legally and formally adopted.
- If the parent had a child that was later adopted by a step-parent, then that child will not be able to inherit. In that case, the deceased parent gave up their parental rights to the child and in return the child gave up their right to inherit.
- Grandparent to Grandchild: if the decedent had grandchildren, and the grandchildren’s parent died before the decedent, then the grandchildren would inherit their deceased parent’s share. If the deceased parent had a spouse, the surviving spouse would not receive any of the inheritance and instead it will all go to the grandchildren and be split equally.
- Child to Parent: death does not pay attention to age. If the parent outlives their child, but their child has no living spouse or children, then their child’s estate will go to them.
- Siblings: if there are no living spouse, children, grandchildren (including great-grandchildren), or parents, then the decedent’s surviving siblings would divided the estate between them.
- Nephews and Nieces: if there are no living spouses, children, grandchildren, parents, or siblings, then the surviving nephews and nieces would divide the estate.
As you can see, there is an order of inheritance. It will also follow this order: spouse, children, grandchildren, great-grandchildren, parents, siblings, nephews/nieces, etc. In fact, grand nephew/nieces and great-grand nephews/nieces would inherit before the decedent’s grandparents.
The court will go through the list of heirs, meaning all surviving blood relatives. Once they come across a surviving relative, then that relative is the heir. In very rare cases would uncles, aunts, and first cousins inherit from a decedent.
If the court is struggling to find an heir, but know they exist and cannot reach them, then the court may order the executor to put a notice in the local paper with hopes that the surviving relatives will come forward.
Yes. If you are facing the probate process or are dealing with a contested will, then it is in your best interest (and of all those involved) to contact a local wills, trusts, and estates lawyer. Probate can be expensive, but the biggest expense is due to how long the process can take. If you attempt to go through it alone, then keep in mind that the probate process can take a long time.
During that process, if there are issues that need addressing, then the probate court has the right to prevent any of the estate from being distributed. This means that those who stand to inherit may be waiting months, or even years, to access whatever their loved one left for them. Don’t run the risk of being tied up in the legal system, and hire a lawyer today.