A lot of folks are shocked to learn that the probate process might be necessary despite the decedent having left a will. Contrary to popular belief, wills do not eliminate legally-required probate procedures. Instead, a will is the primary instrument that courts utilize during the probate process. Probate is a court-supervised legal procedure for acknowledging and gathering the assets of a deceased individual, settling their debts, and dividing any remaining assets among legal heirs and/or beneficiaries.
A Circuit Court probate judge supervises all probate-related matters. The judge will appoint a personal representative and issue him or her “letters of administration.” These documents provide the world with official notice that the personal representative has full legal authority to act on behalf of the decedent’s estate. The court may also conduct hearings when necessary and respond to any questions presented while the estate is administered via the entry of special instructions known as “orders.” The law requires the probate process in order to ensure that all the deceased’s affairs are properly attended to. This legal procedure guarantees that each one of the creditors of the deceased person receives payment. This include IRS tax obligations. It usually costs between 3 and 7 percent of the total estate value to go through probate. Asset transfers from the deceased person to the appropriate beneficiary(ies) is the primary purpose of probate.
When someone dies without leaving a will, the law refers to him or her as “intestate.” If a person dies intestate, executing their estate will be conducted per state statutory mandates. Probate courts ensure compliance with all such statutory requirements. If someone dies after having prepared and executed a legally valid will, their estate is called a “testate” estate. In such cases, the probate court will ensure that the will was properly executed and that all assets of the estate are disbursed per the terms of the will. It is vital to keep in mind, however, that wills may be challenged. Such will contests can cause asset distributions to be delayed for years and result in the decedent’s estate incurring high costs.
In many cases where the estate is large, family members or other legal heirs might have conflicting interests. All interested parties with a conflict of interest typically hire a lawyer to protect their legal interests in the estate. The plaintiff is the party who originally files a complaint, while the defendant is the personal representative named in the lawsuit. A frequently used ground for objecting to a will is diminished mental capacity on the part of the deceased. Alleging that the decedent was coerced into making the will is another common ground of objection. Among other legal objections that frequently arise are inauthentic will; non-original will; improper design, witness, or signature of the will per official state requirements. Once litigation commences, the will is publicized and becomes accessible to anybody. Besides associated costs and embarrassment, assets may not be distributed according to the wishes of the deceased if the plaintiff ultimately prevails against the estate.
Probate can be an expensive process. It need not be complicated, however. Planning an estate ahead of time is the best means of reducing or avoiding time spent in Probate Court. Adequate advance planning requires much more than visiting the local OfficeMax and buying a generic fill-in-the-blank will form or downloading one for an online website.
Never forget that you have to comply with state probate laws. Probate statues that govern will execution are quite clear. Such laws address issues such as who may or may not be a witness, and when and were you and/or any witnesses to your will may sign. The precise terminology used in a will might be legally accurate. The will could still be challenged if it is executed incorrectly, however. An experienced and knowledgeable probate. attorney has the necessary skill and expertise to draft a valid will that with comply with all state laws and meet your personal needs.