A will must be probated and an executor must be appointed before the assets of a deceased person can be legally distributed. Probate is the legal proceedings in which a person -- typically referred to as an executor or executrix -- is given the legal authority to handle the estate's financial affairs, and transfer the shares and assets to the heirs as dictated by the provisions of the will.
An executor oversees the management of the estate until the assets are disposed of and the estate is closed. If the will did not specify to whom particular items go to, he must make those decisions. The executor must maintain the assets, such as having repairs performed on a home the deceased person owned. An executor named in a will may file a petition for probate in court once the deceased person has died, and an attorney is typically not required under state laws.
Read More: What Are the Duties of the Executor of a Last Will & Testament?
Offering a petition for probate means the named executor must be prepared to act according to law and as directed under the will. Once the will is probated, the document is held as valid in the eyes of the court. The executor receives Letters Testamentary, a document that allows her to access the assets of the decedent, such as bank accounts and retirement savings. Failing to adhere to all court requirements may result in a delay in the probate proceedings, or cost the estate extra money in filing and court fees.
Probating a will may not be an easy process. The heirs have the right to contest the provisions in the will and the validity of the document itself. The basis for a legal challenge to a will depends on the situation, but may include allegations of fraud, undue influence -- when one beneficiary pressured or manipulated the deceased person into will provisions -- and an assertion that the deceased person was not mentally competent at the time the will was signed. A prolonged will contest may drain the estate of funds. The executor must deal with hearings and possibly a trial if a will is challenged, and represent himself and the estate if he has no legal counsel.
However, some wills are probated smoothly, especially if the heirs are in agreement and all of the estate's assets are properly documented. The fees for a probate attorney vary by case and area, but may be higher if the estate has a large value.
An executor must account for distribution of assets to the probate court. He must file an inventory and file receipts from the will beneficiaries proving he paid out the correct share of the estate to the correct person. An attorney can help the executor prepare inventory lists and receipts from heirs, but he still must sign the documents.
If an executor is not fulfilling his legal obligations, the heirs or an attorney representing the heirs may petition the court to have the executor removed. An executor who is stealing from the estate or mismanaging assets may be liable for civil damages and face criminal charges.
Anna Assad began writing professionally in 1999 and has published several legal articles for various websites. She has an extensive real estate and criminal legal background. She also tutored in English for nearly eight years, attended Buffalo State College for paralegal studies and accounting, and minored in English literature, receiving a Bachelor of Arts.