Probating a will asks a court to find that a will is valid and to give it legal effect so the personal representative can wrap up the estate.
The word probate means to prove, so probating a will means proving a will's validity. While the first step of the probate process is to submit the will to the probate court, probate involves many more intricate details and actions.
Admitting a Will
An interested party -- usually a spouse or the personal representative named in the will -- starts the probate process by filing the will with the probate court in the county where the decedent died and asking that the personal representative be appointed to act on the estate's behalf. This is called admitting the will.
The Texas-based Karisch Law Firm, PLLC, warns that the state has a limited time to probate a will. If this time limit expires, a probate court may still allow a will to be admitted, but the process may be more complicated. The court determines whether to admit the will and give it legal effect. It does this by determining that the will is genuine, based on state law. Some states have a presumption that a will is valid unless there is evidence to contradict this.
Based on state laws, the probate proceeding may be formal or informal. A formal probate proceeding requires hearings and may be more expensive. It might require proof of certain information, such as:
- the death of the person who wrote the will
- the residence of the will writer
- the validity of the will
- that legal formalities were followed in the making of the will (such as having two objective witnesses)
- the will writer's capacity
These things are often proved by having the witnesses to the will's signing appear in court. Some wills have self-proving affidavits in which a witness to the will says under oath that the person writing the will was of sound mind and not coerced into signing so that this affidavit can be substituted for the witnesses' live testimony. If the probate court finds that the rules of will construction were not followed correctly, it may find the will void. In that case, the decedent's property passes as if he had no will in accordance with state laws.
An informal probate proceeding takes the court out of much of the process to make it easier and less expensive. It does not usually require a hearing. The court clerk might review the petition made by the personal representative and recommend that the court probate it.
Contested Probate Proceedings
An interested party who believes he stands to inherit may contest the will if he believes the will was made fraudulently or under duress, the formalities of making the will were not followed or the decedent was not of sound mind when he made the will. If the validity of the will is contested, this must be resolved by the court before any other part of the probate process.
Once the will is admitted or the probate court decides there is no valid will, the personal representative starts to settle the estate. This involves collecting the decedent's probate property, collecting any income owed to the decedent, giving notice to heirs and creditors and paying off the estate's debts and taxes. Whatever property is left after these tasks are completed is distributed to the beneficiaries under the directions of the will or state law if there is no valid will.
Some individuals choose to avoid the probate process due to the expense and time delays. Leanne Kaufmann, vice-president of a wealth management firm and author of a book for executors, points out that once a will is probated, it becomes a public document. Avoiding probate can help ensure that property is disposed of in a more private manner.
The Law Offices of Ney & Friedenburg says that probate is only necessary when there is not another mechanism in place to transfer ownership of the decedent's assets to others. Property may be transferred outside of probate by filling out a beneficiary designation form, such as for a retirement account. Certain property can be transferred at death by filling out a payable on death or transfer on death form, such as for a checking account.
- Some states offer a simplified process for estates that have a lower value, as determined by state law. Additionally, they may allow beneficiaries to withdraw funds and collect property by filling out an affidavit and giving it to the person who has the asset.
- Law Offices of Ney & Friedenburg: Do Estates Always Have to Go Through the Probate Court Process?
- Texas Probate: Frequently Asked Questions About Steps to Take When Someone Dies
- FreeAdvice: When Does a Will Have to Go through Probate?
- Financial Post: To Probate or Not to Probate
- Legal Dictionary: Probate
- Nolo: Avoiding Probate
- FindLaw: The Probate Basics