Wills are estate planning documents which allow individuals, called testators, to designate the manner in which their property will be distributed upon their death. Property which may be disposed of in a will includes both personal property and real property.
In general, most states have certain requirements that must be met in order for a will to be valid, including:
- The will must be in writing;
- The testator must sign the will;
- The will must be witnessed by two or more competent witnesses;
- The testator is required to have testamentary capacity.
Although it is not always a requirement, will should be dated. This may help if a dispute arises in the future regarding which will is correct if an individual made multiple wills.
If a testator is unable to sign their will, for example, if they cannot use their hands, they may be able to use an alternate method of signing. This may include simply making a mark, such as an X, and having a witness sign to attest that the testator did, in fact, sign the will.
Typically, a witness cannot typically be interested. This means that they cannot be named as a beneficiary in the will or otherwise have a stake in the will.
Testamentary capacity is usually met if a testator is over the age of 18, in the military, or legally married and they are aware:
- That they are creating their will;
- The effect of that will is to distribute their property when they pass away;
- They understand the property which they are distributing; and
- They understand who is receiving that property.
It is important to note that the requirements discussed above may vary depending upon the state in which a testator resides as well as the type of will that is being created. For example, if the individual’s will is a holographic will, it typically does not require the signature of a witness, as long as the will is written and signed by the testator.
What Does it Mean to Probate a Will?
To probate a will means to establish the legal validity of a will. Probating a will is necessary in order to prove that a will is a genuine legal document prior to making any property distributions to the proper beneficiaries named in the will.
One of the main objectives for probating a will is to determine whether or not the will is a genuinely valid legal document. If a probate court determines that the will is legally verifiable, it is said to be admitted to probate.
This means that the process for distributing the property of the estate and the assets therein can begin. Generally, a probate proceeding is initiated and overseen by the executor of the estate.
The executor is typically an individual who is designed by the will. In addition, a will usually cannot be acted upon until it is formally entered into probate.
How is the Probate of a Will Accomplished?
The process of probating a will begins when an individual files the necessary documents with a probate court. The individual filing to begin the probate process will be required to present the original will document to the probate court.
The probate court will be required to authenticate the original will document because, in most cases, a copy of the document will not meet the standard legal requirements. If a situation arises where the individual is only able to present a copy of the will, they must have a legitimate reason.
Although an executor of an estate is typically the individual who is responsible for filing the will, the task can be completed by any individual, so long as it is done within the required time frame. The probate filing of the will must occur within a certain time frame following the death of the testator.
There are several factors which must be established and determined by a probate court before an estate can be evaluated or any of the property in the estate can be distributed. This applies to any formal probate proceeding.
For example, a probate court will usually need to establish certain factors, including:
- The cause of death of the testator or the facts surrounding the testator’s death;
- If the testator is actually deceased;
- Whether or not the will is genuine and valid;
- The state of residence of the deceased individual, since this will affect how the property in the estate is distributed;
- Whether or not the will fulfills all of the statutory requirements of the state; and
- Whether or not the testator was mentally and legally competent at the time the will was created.
Once these facts are established, an executor is able to start performing their duties which are outlined by the state probate laws as well as in accordance with any specific requirements which are listed in the will itself.
The duties of an executor may include:
- Classifying the estate property and assets;
- Identifying and notifying the recipients of the distributions, including the beneficiaries;
- Paying off any related property taxes, property debts, or estate debts; and
- Taking care of many other matters related to the testator’s estate.
Is the Probate of a Will Always a Simple Process?
No, probating a will is not always a straight-forward of simple process. In fact, probating a will is often one of the most complicated portions of property distribution and other estate issues.
This is the time period in which many types of legal issues are raised, including will contests, will disputes, and other types of lawsuits which may arise between the various parties who are involved in the process of probating the will.
For example, one party may bring a claim against another party regarding who should be the individual who receives a particular piece of property. Another issue which frequently arises is when an individual contests the amount of funds or assets which they should receive under the terms of the will.
It is essential that an individual’s will be written in the clearest language possible. This is because, when the will is read, the testator will no longer be around to clarify any ambiguous issues or language.
Clearly written language helps minimize and prevent many conflicts from arising during the probate process. It is also essential that an executor be competent as well as knowledgeable regarding the testator’s intentions.
In addition, individuals who are involved in a will contest will generally be required to resolve their issues by a legal proceeding. In some instances, a testator may include a no-contest clause in their will.
A no-contest clause provides that a beneficiary will not be eligible to receive their distribution from the will if they challenge any provision of the will.
Do I Need to Hire a Lawyer for Help with How to Probate a Will?
It is crucial to have the assistance of a probate lawyer for any issues related to a will or probating a will. It is important that the probate process runs smoothing because that will ensure that the estate of the testator will be properly managed and distributed.
Your lawyer can provide you with legal guidance regarding will and probate issues and help to ensure that the probate process goes correctly and smoothly. Additionally, they will represent you in court if you are ever required to file a claim related to the will document or another related dispute.