Subject to where you live and your situation, you may have several options to probate a will.
A will is going to dictate how an individual’s property is going to be distributed after they pass away but, prior to assets being handed over to their beneficiaries, the will needs to go through the probate process.
Probate is a legal process of having a deceased individual’s will officially approved by a court and then set up to carry out their final wishes. Every state has their own probate courts that take care of this process.
There are 5 ways in probating a will, but all 5 are not offered in every state, so make sure to establish what your state laws require.
1. Formal Probate
The formal probate process is utilized when an individual passes away with a will and an estate of considerable value. The executor, the individual appointed in the will as the individual responsible for ensuring the will is probated and the assets allocated, needs to begin the process by filing a petition within probate court. When the court deems the will genuine, it will issue an order for the deceased’s assets to be allocated in accordance with the instructions in the will.
The next step in probating a will is for the executor to give notice to all the individuals that have an interest in the proceedings. This comprises of:
- Individuals named in the will that is going to inherit the deceased’s assets
- Individuals to who the decedent’s estate owes money
- Individuals that would inherit under state law when there is no will
- A newspaper. A published notification in a local newspaper chosen by the court
After everyone has been notified, a hearing will be held to establish if the will is legally genuine and if anyone is seeking to dispute it. A will dispute basically involves an individual stating the will wasn’t created and signed according with state law.
Disputes might be that the testator, or individual writing the will, was not mentally sound, that there was fraudulence involved in getting them to sign, and other likewise cases.
Once the will is approved by the court, the executor needs to compile and submit a list of all assets owned by the decedent and their worth and also a list of all creditors with claims towards the estate. When it gets the courts approval, the executor will then settle the estate by paying all creditors first and allocating what is left over to the decedent’s beneficiaries.
2. Informal Probate
Informal probate proceedings are a process that fast tracks the will’s approval and allocation of the assets. This process is only available in eight-teen states, so be sure to verify if your state provides it. Each state will have their own requirements to qualify for this process, but it’s most common when each of the heirs and beneficiaries are in agreement that the will is valid, and no one will dispute it.
Any sized estate may utilize this process and attending court is not necessary. The will is going to be filed with signed declarations by the heirs and beneficiaries. It then gets approval and property may be allocated to the beneficiaries.
3. Claiming Property through Affidavit
If an estate’s value drops under a restriction determined by the state, it is possible to allocate the assets to the beneficiaries via affidavits— legal forms that are pledged to in the presence of a notary.
The probate court has no involvement in this process. Rather, the beneficiary finishes an affidavit declaring that they are entitled legally to the property. The affidavit is then submitted to the institution retaining the asset, like a financial institution or brokerage firm, and petitions it for the transferring of the asset to the beneficiary. This approach isn’t valid for real estate.
4. Summary Estate Administration
This kind of process is available if the estate’s worth is less than a particular limit determined by the state and it is available when an individual passes away having or not having a will. This summary process will go through probate court, but it takes less time and a lot quicker.
When the decedent owned actual property, this type of process is commonly unavailable. The process is comparable to that of a formal probate, but there are less forms, a short court appearance, and a quicker timeline.
5. Set Aside
Set asides are comparable to summary estate administration and is available in a couple of states, like Nevada and California. The estate needs to be under a particular amount for qualification. The case does go through the probate court but there are less forms and the case is resolved faster. Typically, this is available only when the beneficiary is the living spouse or minor children.
Probating a will enables beneficiaries to inherit the assets entitled to them. The 5 different probate options provide various routes to carry out the wishes included in the decedent’s will.
Sember, B. (2021, February 18). 5 ways To Probate a will. Retrieved March 26, 2021, from https://www.legalzoom.com/articles/5-ways-to-probate-a-will
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