Probate of Will
Understanding the requirements and processes of probating a last will and testament is an important step in being prepared to make informed decisions about estate planning. This planning is essential to secure your wishes and your family’s future well-being.
Is Probate Required If There Is a Will?
All wills must be filed with the court along with a copy of the death certificate. This begins the process of determining the validity of the will and appointing the executor, who has likely been nominated in the will itself.
Most estates with a well-prepared will should be able to undergo the informal probate process, which is overseen by a magistrate of the court. It allows the executor to close the estate by filing a sworn statement that all debts, taxes and any other expenses have been settled and that remaining assets have been transferred to the estate’s beneficiaries.
When there is any doubt about the validity of the will or disputes regarding the distribution of assets, probate becomes much more complicated and expensive.
What Does It Mean to Probate a Will?
Probate is the legal process of transferring a deceased person’s assets to the proper parties. The probate process can be time-consuming, complicated and stressful for surviving family members — even when there is a will.
Some assets do not need to undergo the probate process, so they are more easily transferred. These include:
- Jointly held property with a right of survivorship, which means the surviving joint owner automatically takes ownership
- Assets with beneficiaries previously designated
- Assets that are held in trusts
In the case of these assets, executors or beneficiaries (or their representatives) must follow certain steps to ensure the transfer of ownership of assets is handled correctly, but this is not the same as probate.
What Causes a Will to Go to Probate?
A will, by definition, must go through probate. Even when the deceased has left a will detailing their wishes for their estate, probate is required. The probate process includes:
- Ensuring the will is valid. A will must be allowed by a probate court judge to be effective. The judge reviews the document to ensure its validity and that it complies with the formalities required by state law.
- Changing the title of assets. When there are assets that are only in the decedent’s name without any right of survivorship, the titles cannot be transferred to beneficiaries without probate.
- Paying creditors. Estate debts are not simply lump sum concerns. Some ongoing expenses may need to be paid even during the probate process to keep assets in good standing, such as mortgages, car payments and utility bills. Sometimes this is best done through an estate bank account, which can be established as part of the probate process.
- Settling any disputes. Sometimes, despite best efforts, beneficiaries do not agree with the will’s contents as to how the estate should be distributed. While probate unfortunately does not ensure that everyone walks away happy, it does allow beneficiaries to hire an estate planning attorney and place the decision-making in the hands of a probate judge.
Whatever the reason probate became necessary, it entails some basic proceedings, including:
- Petition and copy of will filed in probate court
- Executor officially designated by court
- Notice to creditors published
- Assets inventoried — and appraised if needed
- State and federal tax returns filed
- Debts settled and paid to creditors
- Assets distributed to beneficiaries
What Happens If You Don’t Probate a Will?
The death of a loved one is overwhelming. Coping with loss is difficult enough without the challenge of navigating complex legal and financial processes, even if you are not the appointed executor.
However, neglecting the probate process can have devastating consequences in a number of areas, including:
- Titled assets. Without probate, titled assets such as homes or cars will remain in the deceased person’s name, making it impossible to make financial or legal decisions about the assets.
- Debt obligations. When properly notified of the probate process, creditors have up to twelve months in Massachusetts to make a claim against an estate. Even undergoing the proper process of resolving debts through probate can be an extensive and exhausting process.
- Security of heirs. Without the probate process, not only are the wishes of the decedent possibly ignored, but the potential impact on the beneficiaries can be financially or emotionally devastating. Not all assets are purely financially valuable — probate can ensure that family heirlooms and items of emotional significance are properly distributed.
Legal consequences for an executor who fails to probate a will are possible if it is determined that probate was avoided for the executor’s personal gain. The more likely scenario is that beneficiaries who feel slighted could file lawsuits.
How We Can Help
Because of the complexities and high stakes of probating a will, all participants involved in the probate process can benefit from skilled representation.
- Executor: Serving as the personal representative of an estate is an honor, but also a monumental responsibility. Legal guidance can be crucial in ensuring that the probate process is managed correctly. Working with a wills and estate planning attorney near you can also help protect the best interests of the estate’s heirs when it comes to paying debts and taxes.
- Heirs and beneficiaries: Not uncommonly, the deceased person’s surviving beneficiaries and heirs will hire representation for legal guidance throughout the probate process to ensure the executor is diligent and that their own inheritance rights are represented.
- Challengers: Interested parties who believe they have standing to challenge a will — such as the decedent’s spouse, beneficiaries, legal heirs not mentioned in the will, creditors or those who believe they should be beneficiaries — will need legal representation. First, they must prove they have standing to challenge the will, and then evidence must be presented that the will as written is invalid.
The Law Offices of Kimberly Butler Rainen can support you through probate of a will, no matter your position or stage in the process. We can also work closely with you to understand how estate planning will help you avoid the potentially disruptive probate process when it comes to your own estate. Contact our office today to schedule a probate consultation or discuss your estate planning needs.