What is “Probate” and why should I care?

To “probate” a Will or an estate refers to the legal judicial procedure by which a deceased person’s Last Will and Testament is filed with the appropriate Court so that the Judge can formally determine that the Will is valid and should be given legal effect. Without doing this, even if a person leaves a Will behind when he or she dies, if it is not admitted to probate, it has no formal validity or legal effect.

People often complain about this, but if you stop and think about it, it makes perfect sense! How else will your descendant’s and other members of the public know for certain that the document (“Will”) being offered for admittance to probate is valid? Someone could try to forge a Will or offer a version which had been replaced by a later Will, or maybe the person executing the Will was not mentally well enough to understand what he or she was signing- these and many other reasons demonstrate why probate is appropriate and necessary.

Usually, going through the process of probating a Will is not difficult or expensive if the Will was prepared correctly. Essentially, the procedure entails the person appointed by the Decedent to represent the Estate contacts a lawyer and has an application filed with the Court to admit the Will to probate. This process includes then appearing before a Probate Court Judge (sometimes a County Court) for a brief hearing to have the Judge review the Will and hear some evidence establishing the Will is valid. At that time, the judge will sign a court order declaring the Will is admitted to probate and appoint a representative of the Estate, who will either be “independent” or “dependent” on the Court’s approval of his or her actions in administering the Estate. Afterwards, if the Will created an “Independent” Executorship (as most do), the Independent Executor may, with the lawyer’s guidance but without further meaningful oversight by the Court, determine the value of the decedent’s assets, pay his final bills and taxes, and, ultimately distribute the remainder of the estate to the rightful beneficiaries.

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