Practice Areas | Probate
When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration. There are several statutes and rules that govern how and when the assets of the deceased are managed and distributed. If a person has only a will, that will is a ticket to probate court. A will means nothing until a probate court judge declares it to be valid and enforceable. Then, there are several procedural hoops to jump through before the terms of the will can be fulfilled. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.
Whether you have a handwritten will (also known as a holographic will) or typewritten will, its validity must be proved in court. To probate a will, it must be established in court that the will meets the requirements of execution and that the will was not canceled or revoked. Additionally, unless the will is “self-proved,” proof of a handwritten will requires the testimony of two witnesses to the testator’s handwriting and proof of a typewritten will requires the testimony of one of the attesting witnesses.
It is important to maintain the original will. If the original will was last seen in the possession of the decedent, and now it cannot be found, it is presumed that the testator destroyed the will. While it is possible to overcome the presumption, actual evidence will be necessary and the probate will be more costly and time consuming.
A self-proved will is one that has attached a specific form of affidavit containing certain required statements which is executed before a notary public at the time the will is signed or anytime thereafter but before the testator dies. A standard notary acknowledgment alone is insufficient to make the will “self-proved.” A self-proved will is admitted to probate on the basis of the self-proving affidavit and there is no need to call witnesses.
A will that is not proved in court is denied probate. In this event, the decedent’s property passes to his or her heirs as if he or she died without a will. It is important to execute a will which meets all legal requirements, so that property will pass as the testator wishes. After proving the validity of a will, or the lack of a will, the next step in the process is the administration of the estate.
Probate is a public, expensive and time-consuming process. Contact us today to help you develop an estate plan that will keep your loved ones out of probate court!
If your loved one owned his or her assets through a well-drafted and properly-funded living trust, it is likely that no court-managed administration is necessary. This avoids the very public event of having to file a will with the probate court. It also avoids the costs and time delays built into the court-managed probate of an estate. With a well-drafted and integrated trust plan, the person named as the successor trustee of the trust will handle the distribution of the trust assets without having to go to court first.
Schedule a free consultation to discuss your probate or estate administration needs!