Most people are surprised to discover that probate may be necessary whether or not the deceased made a will. A will does not eliminate the probate requirement, rather, a will is the primary mechanism used in the probate process. Probate is a court-supervised process to identify and collect a deceased person’s assets, pay off the decedent’s debts, and distribute remaining assets to beneficiaries.
A circuit court judge oversees probate proceedings. The judge appoints the personal representative and issues “letters of administration,” also called simply “letters.” This document shows the world that the personal representative has the authority to act on behalf of the deceased’s estate. The judge also holds hearings when necessary and resolves all issues raised during the administration of the estate by entering written instructions called “orders.” The succession process is necessary to liquidate the affairs left by the deceased. It ensures that all creditors of the deceased, including the IRS, receive the proper payment. Probate can easily cost 3% to 7% of the total value of the estate. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary.
If the deceased dies without leaving a will, he dies intestate. When someone dies intestate, the distribution will be made in accordance with the order established by state statutes. The probate court will make sure the law is followed. If a deceased dies leaving a duly executed will, he is testate. The court will make sure that the will is valid and distributions are made according to it. However, it is important to remember that a will can be contested. This can delay distribution for years and will be a great expense to the decedent’s estate because attorney fees and court costs are paid with them.
Many times when there is a large estate, family members or heirs may have conflicting interests. Interested parties with contradictory claims will then hire legal representation. The interested party filing the lawsuit will be the plaintiff and the personal representative (in his capacity as personal representative) will be the defendant in the lawsuit. Some of the most common objections are that the deceased lacked mental capacity at the time the will was executed; the decedent was coerced or was under undue influence; the will was falsified, or the will was not properly drawn up, signed, or witnessed, in accordance with the formal requirements of the state. Once litigation begins, the will and family matters become public record for the world to see. In addition to public embarrassment and expense, if the plaintiff wins, the deceased’s wishes are not carried out.
Although it can be expensive, the probate process does not have to be complicated. The best way to lessen or eliminate an unpleasant experience in probate court is to plan ahead. However, planning ahead doesn’t mean going to the office supply store and getting a “fill-in-the-blank” will or downloading it from an unknown source. Remember that you must comply with the laws and requirements of your state. There are very specific requirements to successfully execute a will, such as who can or must be a witness and where and when you and your witnesses can sign. The actual language used in the will may be fine, but the will can be challenged if it does not follow the execution formalities. In addition, certain family members may have rights granted by law. To minimize the chance of your will being contested, seek out an estate planning attorney. A knowledgeable attorney will be able to draft a will that meets your needs and the laws of your state.