Table of Contents
- What is Probate?
- Is it Necessary for All Wills to Go Through Probate?
- How is the Last Will Probated?
- What is an Estate Bond?
Probation of a will is what happens to the document and the person’s estate after this person is deceased. This happens in court with a Grant of Probate. If it’s granted, the executor will be able to have a transfer of all the person’s belongings and estate. The court will then oversee the distribution of the deceased person’s assets until they are distributed or divided up.
What is Probate?
Probate is always court-supervised and will be used to authenticate the last will and testament of the deceased person. It will be used to locate and determine the value of the person’s assets. It will also include paying their final bills and taxes.
After the taxes have been paid, the remainder of the estate will go to the beneficiaries. A special probate court oversees the process. This court has all legal authority to decide all matters related to the wills and estates of the person who has died.
During this process, the court will determine if the will is valid or not. They will appoint an executor of the final will, and they pay all the debts out of the estate before distributing the rest of the assets.
Probate will sometimes also be called the Probate process, depending on the state you live in. Probate laws will vary by state, as some states are stricter than others. Sometimes if the property is less than a certain amount, it can go directly to the heirs without going through a probate process.
Sometimes the heirs can request that the estate be distributed to them rather than going through probate. However, this only works if the estate is smaller and determined to be below under a certain value. The heirs asking for the estate themselves lets them bypass the probate process.
The exact value to determine if the last will needs to go to probate court will depend on the state you live in. Even if there is no will, probate is still required because their taxes will have to be paid, and their estate will need to be distributed.
Is it Necessary for All Wills to Go Through Probate?
Not all wills need to go through probate. As mentioned above, an estate of small sizes usually does not need to go to probate court and can be distributed without probate using a small estate affidavit. Some people also avoid probate by putting their assets into a living trust. However, some probate is usually required, even in this case.
Another way to avoid probate is for real estate property is to have a transfer-on-death deed in place.
Probation of the will is hard to avoid entirely, so it’s important to know how the process works and the steps that are involved.
How is the Last Will Probated?
Every state has different rules for how a will can be probated and what documentation is required. However, there are some documents and procedures that are the same in every state. Basic procedures are listed below, but make sure to check with the court in the state you live in so that you have all the necessary papers.
Submission of Death Certificate
When a person dies, the death certificate needs to be submitted to the probate court. Anyone who has the will needs to submit a copy to the court. This needs to be filed with the probate court as soon as possible, so make sure you do it as soon as you have the death certificate.
You won’t be able to file the will without the death certificate. You will also need to petition the opening of the probate of the estate. This allows the judge to take the new steps to ensure the probate process starts.
A form should be provided for the petition to open the will. You should be able to fill it out quickly and submit it within a few days. Here’s an example of probate forms for New York.
Validation of a Last Will
A will needs to be validated by the probate judge who is appointed to the case. Sometimes this involves a hearing which causes the process to take a little longer. A notice of the hearing is to be given to all beneficiaries. They will need to be given ample notice so that they can be there for the court hearing if they want.
The hearing is mainly held so that the beneficiaries can object to the will being probated if they want. If anyone is in possession of a new will, they will need to give it to the court to determine if one is more valid than the other. Some people might also object to the will if it is not drafted properly.
To determine if the will is valid, the court may rely upon witnesses. However, the signatures on the will are usually enough for the court to move ahead with the probate process. If there are no signatures on the document or the signatures are not valid, the court may call witnesses to determine if the will is valid or not.
This usually involves someone swearing under oath that they saw the deceased person sign the will and that they are sure the person they saw was the correct person. If a will has a self-proving affidavit attached, this process will not require witnesses to testify in person, thus simplifying the probate.
Appointment of an Executor or Representative
After the will is determined to be valid, the court will appoint an executor to oversee the distribution of the assets. This person is also called a personal representative. The person’s choice for the executor is often stated in the will for who they wanted to have this job.
If there is not a person stated in the will, the court will usually appoint the next of kin. Usually, this is a surviving spouse or adult child. If they do not want the job, they can decline and ask that someone else do it.
The personal representative will then be able to act and enter into transactions on behalf of the estate. This is called “letters of authority” or “letters of administration.”
Notices to All Beneficiaries
The court will send a notice to all beneficiaries that the estate is being probated, and it will name the person in charge of the process. All beneficiaries need to be aware of the process to know what to expect and who to contact should they have any questions.
Evaluation of the Estate
The estate will need to be evaluated and determined how much value is in it. They will also determine the value of all the properties and other assets. During this time, they will make sure that all assets that are named in the will have been located. They will also need to protect all the assets and make sure no one can appropriate them.
Payment of the Fees
Once the assets have been located, and the value is determined, the representative will need to pay the decedent’s debts. They will also need to pay all the final bills, including those incurred in the final illness.
They will also need to prepare and file the tax returns. All taxes need to be paid before the assets are given to the beneficiaries.
Distribution of the Assets
After taxes and fees have been paid, the representative will ask the court to give the remainder out to all the beneficiaries named in the will. The executor needs to submit all the papers from every financial transaction to the court before the distribution occurs.
In some states, the beneficiaries can waive this step and requirement if they agree that the estate is ready, and they don’t need to see the transaction paperwork.
If any of the beneficiaries are minors, the executor might also be in charge of setting up a trust or accept possession of the estate until they become old enough to manage it themselves.
What is an Estate Bond?
This is also known as a probate bond. This is an insurance policy that the state puts into place to ensure that the estate is protected if the executor makes an error or purposely takes something from the estate.
Mistakes can financially damage the estate and affect the beneficiaries, so the court wants to make sure the assets are protected if there is an error and money is lost. Beneficiaries can opt-out of this process if they feel it’s unnecessary and if the representative is the same person named in the will.