The term “probate” refers to a specific type of legal process wherein the estate of a deceased individual is distributed in accordance with the supervision of the local probate court. The probate court will be responsible for overseeing all related matters, which may include:
- Establishing the validity of the will document;
- Identifying and cataloging all property associated with the deceased’s estate;
- Distributing property, assets, and personal belongings of the deceased to the proper beneficiaries;
- Appointing or ensuring that an executor has been named to manage the deceased’s estate;
- Obtaining an appraisal of the estate (if necessary); and
- Making sure that there is a plan in place to pay off any remaining liabilities and debts still owed by the deceased’s estate.
It should be noted that while the tasks in the above list account for many of the objectives that are meant to be accomplished in probate, not every state will have the same probate requirements or follow the same probate process. For instance, some states have laws that dictate when it is necessary to probate a will, whereas other states may not even require the probate process at all.
Generally speaking, however, the overall purpose of both the probate process and the probate court is to ensure that all estate matters are eventually settled in a manner that complies with the relevant laws and reflects the last wishes of the deceased testator as closely as legally possible. This is true regardless of the jurisdiction in which the probate process is taking place.
In addition, one last fact to keep in mind regarding probate is that the entire process can take anywhere from one to up to three years or longer to complete. The length of the probate process will largely be contingent on four primary factors:
- The probate laws and associated procedural requirements laid out in a jurisdiction;
- Whether any disputes arise during the probate process;
- If there are any ancillary probate matters that need to be completed first for property located in other states; and
- Most importantly, the size or value of the deceased testator’s estate.
Thus, given the complexities of standard probate matters and the intricate legal procedures required to complete the probate process, it is very important that you review the probate laws in your jurisdiction before taking any legal action. It is also strongly recommended that you hire a local probate lawyer to further assist you with the entire probate process. This is especially true when the circumstances involve a dispute or an ancillary probate matter.
What Is Required to Probate a Will?
As previously mentioned, the requirements to probate a will often vary from state to state. Generally speaking, however, a person (usually the executor of an estate) can initiate the process by filing the necessary legal forms with their local probate court. Of course, the most important legal document to include in the probate filing is the original will document itself. In fact, the individual filing for probate will most likely be required to submit the will to the court.
The will that is submitted must be the original legal document and not a copy. This is because the whole point of probate is to validate the will. Thus, the probate court will need the original in order to determine whether the document is authentic. In the event that an individual can only submit a copy of the will in question, then they must also provide a legitimate reason for doing so. Accordingly, the first requirement to probate a will is to locate the original document.
Some other tasks that may be required to probate a will and should be completed before even filing for probate include:
- Determining whether the state in which the will is being probated requires the probate process, and if so, if the estate satisfies all of the requirements to pass through probate;
- Selecting the method to use to probate the will (e.g., informal, formal, supervised probate, etc.);
- Identifying the executor of the estate (usually listed in the terms of the will document);
- Obtaining a valid death certificate of the deceased;
- Creating a list of the property and assets owned by the estate;
- Creating a list of the remaining liabilities and debts still owed by the estate;
- Notifying the beneficiaries named in the will;
- Filing for an appointment with the probate court to determine if it is the correct location and is where the probate documents should be submitted; and
- Collecting all other important legal documents related to the probate proceeding.
What If There Is a Will Contest?
A will contest refers to a dispute wherein one or more interested parties disagrees with what is expressed in the deceased testator’s last will and testament. An example of a frequently recurring issue that often results in a will contest is when several family members or other beneficiaries of the deceased claim that a specific piece of property was promised to them before death.
This type of scenario usually occurs when the property in question is particularly expensive or holds great sentimental value for all of the disputing parties. In such cases, the dispute may need to be settled by the probate court. This means that one of the parties will have to file a claim and then each of the parties involved will need to provide substantial evidence that supports their side of the argument.
It should be noted, however, that most courts will typically distribute property in accordance with the terms that are provided in a valid will document. Thus, without solid evidence, such claims may be reviewed and then readily dismissed or ignored by the court since their preference is to distribute such property items as closely as possible to the deceased testator’s intentions.
Do I Need a Lawyer for Help with Will Probate Proceedings?
As discussed above, the laws concerning will probate proceedings can vary widely from state to state. Thus, if you have questions about the probate process or need help filing a dispute with the court, then it may be in your best interest to search for and hire a local probate lawyer as soon as possible.
An experienced probate lawyer who practices in your area will already be familiar with the probate laws and procedures required in your jurisdiction. Your lawyer can offer sound legal advice on how to navigate the local probate court system and can even personally guide you through the probate process via various legal services.
For instance, if you are a beneficiary of the deceased and believe there is an issue with the appointed executor, your lawyer can help you draft and file the necessary legal documents to initiate a case. Alternatively, if you are the party (e.g., an executor, beneficiary, etc.) who is being sued, your lawyer can also help to protect your legal rights and interests by arguing the proper defenses against the claim in a court of law.
Finally, if you need to contest a will after the probate process has already ended, reside in a state that allows a testator to contest a will before death, and/or are attempting to find a way to avoid the probate process altogether, a qualified probate lawyer will be able to assist you with all of these tasks as well.