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Probate
What is "Probate?"
It is a term used when a will is filed with the court, is in the proper form,
and the Probate Court accepts it as the proper will of the deceased. Some folks
have the idea that the word refers to a long, drawn out process, but that is
not really the case.
How do you get a will probated?
If the will is properly done with all the necessary signatures and containing
all of the language required by the particular State, probate is a simple matter
of filling out a form, getting the proper signatures, and taking the documents
over to the Probate Court.
What happens at the Probate Court?
If everything is in proper form and the interested parties have signed, the
court accepts the will as being the will of the deceased, and the personal representative
takes an oath. That is all there is to it. The will is then probated.
How long does this take?
Seriously, a proper will can be probated in a few minutes. There is no significant
delay at all. Delays arise when the will was not done properly, or when there
is no will.
Will a bond need to be posted?
With a properly drawn will, no bond is necessary. In fact, one of the purposes
of a will is to relieve the executor or personal representative of the obligation
to post a bond.
What signatures are required for probate?
In most cases, the signatures of the spouse and adult children on the petition
to probate are the only signatures necessary before probating the will. If there
are minor children, then delays can occur, but not of significant length.
Are minor children involved in probate?
Not directly. In most cases where there is a minor child, the Probate Court
will appoint a person called a guardian ad litem to represent the interests
of the minor child or children. In most cases where a will is offered for probate,
this appointment is a formality because the will itself was made to advance
the well being of the children.
Is this delay a reason not to probate?
No. Any delay is insignificant. In most cases the guardian examines the documents
and signs off on the probate of the written will. Delays will occur where no
will was left, and the guardian ad litem is representing the minor children
in an administration situation.
Is a newspaper ad required for a will to be probated?
Not in most cases to have the will admitted to probate. Where a will does not
contain the proper language, or where an heir may be missing, a delay of a month
will occur between filing the petition and the determination regarding probate.
This delay is to allow a newspaper ad to run giving notice; however, in the
case of a proper will and estate planning scheme this will not be necessary.
A missing child is a very good reason to have a will, and have it probated,
for without a will that "missing" person probably inherits if he is a child
of the deceased. This happens not infrequently with estranged children.
Is there a required notice?
You may have seen the notices to debtors and creditors running in the newspapers
after someone dies. This should be done in any case, whether there is a will
or not, to terminate the time within which claims may be made against assets
of the deceased person.
What about safety deposit box access?
People often do not think about this problem. What if a person and his or her
spouse are injured and access to the box is necessary? This is something which
can be arranged with a little common sense. Make sure your adult child or representative
has signed the card at the bank giving that person access to the safety deposit
box. You don't have to give that persons a key, but he or she can access the
box after the death of the box holder without delay because the person is on
the signature card. Of course, the key would be needed at that time. If this
is not done, there is still a process for inventory of the box until appointment
of the executor, but this is a step which is unnecessary if the executor or
some other person is already authorized to have access to the box..
Where is a will probated?
In the county of residence of the deceased. This is the legal residence, not
the county where the person might be at the time of death.
What if there is no will?
In that event, the process is called administration. Some new procedures make
that a much easier process also. A separate page exists on this web site on
the subject of administration.
Does everyone know all the estate assets when there is "probate?"
Not at all - not if there is a properly drawn will. One of the standard provisions
of a properly drawn will is one relieving the representative of the duty to
file an inventory. No listing of assets is filed in court. Nobody will be able
to know what the properties are. Most wills do not list individual properties
either. A common plan is "everything to my spouse but if both of us go
to my trustee to take care of the children until the youngest reaches the age
of 25." That's all there is to it any there is no public record of what
"everything" is.
Does the Probate Judge throw out many wills?
There are very few successful challenges to wills in Probate Court. Someone
attempting to "break" a will has to prove certain things, not just that he or
she does not like it. Very few wills are challenged in Probate Court.
Do wills have to be probated?
No. Things may have changed since the will was prepared; however, one can't
just throw it away. When a person dies leaving a will, that will must be filed
in the Probate Court. That does not mean it is probated, but just filed. Some
people file their wills with the Probate Court right after they are done. Filing
a will with the Probate Court does not mean that it is probated.
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