Wills and Probates Attorneys
Distributing a Decendent's Estate
When an individual dies, his or her estate must go through probate, a practice overseen by a probate court. If the decedent leaves a will stating how his or her property should be administered after death, the probate court must decide if it should be permitted to probate and given legal validity. If the decedent dies without writing a will the court appoints a personal representative to distribute the property in accordance with laws of descent and distribution. These laws govern the distribution of property based on family succession.
For the most part, the probate process entails collecting the decedent's assets, liquidating financial obligations, paying taxes due and distributing property to beneficiaries. The probate process is governed by state law and has been the subject of opposition and restructure since the 1960s.
Probate of a Will
The probate of a will involves proving its authenticity in probate court. A will must be submitted to probate before a court will permit the disbursement of a decedent's property to the recipients agreeing to its provisions.
Generally, a will has no legal weight until it is probated. A will should be probated without delay, and no one has the right to withhold it. The person with control of a will must submit it, most likely the decedent's attorney or personal representative. Statutes impose penalties for suppressing or destroying a will or for failure to submit it within a required time.
Proceedings are usually held in the state in which the decedent had residence at the time of death. However, if the decedent owned property in another state, the will disposing of these assets must also be probated in that state. To meet the requirements of a will in probate, it must conform to all statutory requirements. A will that has been correctly completed by a proficient person, is entitled by law to be probated, even if some of its conditions are unallowable.
A will made as a product of fraud or undue influence, or a will that has been altered so that all its provisions are retracted will be denied probate. If the modification only withdrew particular provisions of the will, the remaining provisions are allowed to probate.
Generally, the original document must be submitted for probate. Probate of a copy of a will is not allowed unless a satisfactory reason for the absence of the original is presented to the court. If a properly proved duplicate of a missing will that is submitted to the court, it may be admitted to probate. Some states have specific procedures to handle such instances. A careful and exhaustive search for the original will is required before a duplicate can be probated as a lost will.
A supplement to a will, a codicil, is permitted to be probated together with the will it modifies, if it is correctly written according to statute. If it is complete in itself and can stand as a separate document separate of the will, the codicil alone can be submitted to probate.
A will made in a foreign language will be admitted to probate if conforms to other statutory regulations. A translation usually must supplement the will.
A probate proceeding may be either formal or informal. Probate proceedings were once governed by formal procedures that mandated the probate court to hold hearings and give orders involving routine matters. As a consequence, the legal costs of probating an estate could be excessive. States that have allowed the provisions on probate procedures to follow informal proceedings eliminate the probate court from most stages of the procedure, with the result that informal probate is less expensive and more easily expedited than formal probate. An informal probate proceeding is especially advantageous to smaller estates in.
The probate proceedings start when the personal representative files with the clerk of the probate court a copy of the death certificate along with the will and a petition to admit the will to probate and to grant letters which authorize him or her to distribute the estate. Although the personal representative usually files the probate petition, it can be filed by any person who is involved with the will. A probate proceeding may be switched from informal to formal during the course of distribution if it is more efficient.
In a formal probate proceeding, a hearing must be held to establish the death, the home of the decedent, the authenticity of the will, its conformance with statutory requirements for its execution, and the competency of the decedent at the time the will was made. These requirements are usually satisfied by attesting witnesses who were there when the will was drawn and who verify that it was correctly executed.
When some of the witnesses to a will are not available, specific measures are taken. If the required witnesses have died before the decedent, the person offering the will must offer proof of death, in addition to proof of the validity of the signatures and any other evidence of execution available. Self-authenticating wills contain a statement signed by the witnesses that attests to the competency of the will preparer and other statutory requirements. Self-authentication relieves the witnesses of the responsibility of appearing in court and the personal representative of costly procedures if the witnesses are unavailable.
If no one challenges the will at the hearing, it will be allowed in probate.
Informal probate procedures usually do not need a hearing. The personal representative files the will and death certificate with a request to admit the will under informal probate. The clerk of probate court reviews the proposal and suggests to the court that the will be probated. Once the court releases the order for informal probate, the personal representative files various forms that reveal that notice has been given to all involved parties about the probate, the decedent's creditors are paid, and the estate's assets have been gathered, appraised, and disbursed to the chosen recipients.
Disputed Probate Procedures
The probate of a will can be challenged on the basis that the document is void because of the ineffectiveness at the time the will was made, the failure to comply with the legal requirements, or any issues adequate enough to show the absence of validity. Formal proceedings are required when a will is opposed.
Only an individual having some involvement with that will who will be affected by the probate may contest it. Such persons include close relatives who will receive property if the will is set aside and intestacy results, property buyers from the heir, the state if there is a possibility of escheat, meaning the government will receive the property if no living heirs are present. Creditors usually are not eligible to contest the will of a debtor though
A personal representative must defend the will against opposition and must use his or her best efforts to have it maintained if he or she soundly believes that the will is valid.
There is no constitutional right to trial by jury in probate or will contest procedures, but most states have laws making a trial by jury available. Statutes usually put time limits on will disputes.
Agreement not to Contest
A contract may be drawn with the heirs agreeing not to contest a will. If the contract is supported and the agreement is otherwise valid, the heirs will not be allowed to contest the will.
An agreement among heirs and beneficiaries not to contest a will is a way to prevent an expenses of will contest proceeding. A settlement will be binding if all involved parties agree, but it must not exclude anyone entitled to property under the will. Under some statutes the agreement must be submitted to the probate court for approval.
Custody of Minor Children
Wills often include directives on who will be appointed legal guardian of the decedent's minor children. The probate court may assess the abilities of the intended guardian before granting guardianship. When a will does not contain a guardianship condition, the court itself must decide, based on the best interests of the children, who should be appointed guardian.