The phrase “to probate a will” means to establish the legal validity of a will document. The reason for this is that it is necessary to be able to prove that the will is a genuine legal document before any property distributions can be made to the rightful beneficiaries named in the will.
Therefore, one of the main objectives of the probate process is to determine whether the document is genuinely a valid will or not.
If the probate court finds that the will is legally verifiable, then it is said to be “admitted into probate”, which means that the process for distributing the estate property and/or assets can get started.
In general, probate proceedings are initiated and overseen by the executor of the estate, who is usually a designated person that is mentioned within the will. Also, a will typically cannot be put into action until it is formally admitted into probate.
How is the Probate of a Will Accomplished?
The probate of a will process begins when a person files the necessary documents with the probate court. From the very beginning, the person filing will be required to present the original will document to the court.
The court will need the authentic will document because a copy typically will not meet the standard legal requirements. If a situation arises where a person can only present a copy of the will, they must have a legitimate reason for doing so.
Although the executor of the estate is usually the person responsible for filing the will, this task can be completed by any individual, so long as it is done on time. This is because the probate filing must occur within a certain time period after the individual who created the will (i.e., the testator) becomes deceased.
As previously mentioned, there are several matters that must be determined and established by the probate court before the estate can be evaluated or any properties can be distributed. This is true for any formal probate proceeding. For example, the probate court will typically need to establish the following factors:
- The facts or cause related to the death of the testator, and if they are actually deceased;
- Whether the will is genuine and valid, or not;
- The state of residence of the deceased person (since this will affect how the property gets distributed);
- Whether or not the will fulfills all of a particular state’s statutory requirements; and
- Whether or not the creator of the will was legally and mentally competent at the time the will was formed.
Once the above facts are established, the executor can start performing their duties as outlined by state probate law, and in accordance with any specific requests listed in the will itself. These duties may include:
- Classifying the estate property and assets;
- Identifying and notifying the recipients of the distributions (i.e., the “beneficiaries”);
- Paying off any related property debts and property taxes; and
- Taking care of many other matters concerning the testator’s estate.
Is Probate of a Will Always a Simple Process?
The probate of a will is not always a simple and straight-forward process. In fact, the probate process can often be the most complicated portion in regard to property distribution and other estate matters.
This is precisely the time period in which all sorts of legal issues are raised, such as will contests, will disputes, and plenty of other different types of lawsuits that may come up between the various parties involved in the process.
For instance, one party might bring a claim against another party that they should be the one who receives a particular item of property. Another issue that frequently occurs is when a person contests the amount of monetary funds or assets that they should receive under the terms of the will.
It is extremely important that the will be written in very clear language since the testator will no longer be around to clarify such matters. This should help to minimize and prevent these kinds of conflicts from happening during the probate process. It is also crucial that the executor be competent as well as knowledgeable about the deceased person’s intentions.
Additionally, the parties to a will contest generally need to resolve their issues through a legal proceeding. In some cases, the testator might have included a “no-contest clause” in their will. This type of clause states that the beneficiaries will only be eligible for a distribution if they agree not to challenge any provisions in the will.
Do I Need to Hire a Lawyer for Help with How to Probate a Will?
It is very important that the will probate process goes smoothly because it ensures that the testator’s estate will be properly distributed and managed. Therefore, if you need assistance with a will document or the probate process, you should consider contacting a local probate lawyer as soon as possible.
A qualified probate lawyer will be able to provide you with the necessary legal guidance and assistance to help make sure the probate process is done correctly. In addition, your lawyer can represent you in court should you ever need to file a claim over the will document or other related dispute.