Mon. May 27th, 2019

What is probate and when is it required?

4 min read

Probate means making a legal formal application to handle property left behind after death. The essence of probate is to ensure that there aren’t multiple parties claiming to be the legit handlers.

In case of conflict, it is advisable to file for probate in a probate court to give a specific individual the right to execute the estate.

If the deceased left behind a will, the probate court will determine if it should be admitted and be used to give legal effect. If a will was not left, the court, through the laws of descendant and distribution appoints a representative.

The appointed representative has the right to handle the property. In such cases, asset distribution is based on hereditary succession.

Probate of a will

Probate of a will is the process of determining the legality of a will. Unless otherwise stipulated by law, every will must go through probate before a court allows division of property.

As a rule of thumb, a will has no effect until it has been probated. The person in possession of the will, usually the decedent’s attorney or personal representative, must produce it when needed.

Fines and penalties can be enforced for destroying, concealing, or failing to produce the will within a given duration.

Probate proceedings are held in a state where the deceased had permanently resided at their time of demise. However, if the deceased has other assets located in a different state, the will addressing those properties must also be probated at the said state.

To qualify as a will in probate, there must be an element of testamentary character and statutory compliance.

A will executed by a competent person is entitled to probate even if some of its elements are obscure, invalid, or provisions that cannot be implemented.

Fraudulent wills, a will made as a result of undue influence, or an altered one to revoke provisions will be denied probate. If more than one will exists, they are all supposed to be admitted to probate. A later or most recent update does not revoke prior wills. Two distinct wills can be probated separately.

The original will document must be presented to court unless the absence of the original document has been explained to the court’s satisfaction in which case a duplicate is used.

 

A codicil is a document that effectuates a change in the will without having the will executed again. The codicil ascertains that the contents of the will stand, apart from the areas addressed therein.

A codicil which essentially supplements the will is entitled to probate as it complies with other statutory requirements.

A complete codicil can be submitted to probate independent of the will. However, a codicil that has been revoked by another cannot be admitted for probate. A will in a foreign language is accepted for probate and usually has to be accompanied by a translation and at the same time meet statutory requirements.

Proceedings

Probate proceedings can be conducted formally or informally. In a formal setting, a personal representative files for probate with a clerk. The personal representative will submit:

  • A valid death certificate
  • The will
  • Petition to admit the will to probate
  • Letter of testamentary which gives them the right to handle the deceased’s property

Another person can file for probate for whatever reasons they may present. During proceedings, the process can switch from formal to informal. Informal probate proceedings are cheap and quick they usually eliminate the court from most stages of the process.

Contesting Probate proceedings

Probate of the will can be contested due to various reasons including;

  • Failure to comply with legal formalities
  • The deceased’s incapacitation when the will was made
  • A void letter of testamentary
  • The non-existence of a valid will

Will contesters can only address external validity like fraud, mistakes, undue influence, bad intent, and lack of testamentary capacity. Internal issues like violation of statutory regulations can be addressed later. This is why if you choose to use a will kit online, you must ensure it is valid and will stand up in court.

Although a will has undergone probate to grant the deceased their wishes upon death, the state might intervene and dispose of the property according to the laws of descent and distribution in the event that the testamentary provisions were violated.

Agreement not to contes: a testator can enter into a contract with the heirs not to contest the provisions of his/her will and testament.

Probate is a crucial step in executing a will. The process is civil and has an option to do it formally in a court or outside the court. Even in a formal setting, probate hearing is not a trial. For formality, some states allow a jury sitting in case of a will contest.

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