What Does It Mean to Probate a Will?

by Abigail Denbeaux Kahl, Esq.

Abigail Denbeaux Kahl, Chair of Family Law and Estate Planning GroupsPeople think that probating a Will is a massive, expensive and unnecessary undertaking that simply adds stress in a time of grief and anxiety. However, in most cases, the probate process is neither terribly complicated nor terribly expensive, and an experienced estate planning attorney can help you through every step.

Essentially, the probate process is legally proving the validity of the Will and officially appointing the executor named in the Will. And, going through the process streamlines and simplifies the task of acting on the deceased’s wishes for their estate.

Here are some things to keep in mind. First, not every Will needs to be probated. Probate is only necessary if the decedent owned assets in his name alone or in joint names with another person other then a spouse. Often, for example, when the first spouse dies, there is no need to probate a Will because all assets were held jointly.

If probate is necessary, the process begins by presenting the original Will, a certified copy of the death certificate, and a list of names and addresses of the closest next of kin to the County Surrogate where the decedent lived at the time of death.

The Surrogate then reviews the Will and determines whether all legal requirements are satisfied. If the Will is self-proving, as most are, the Will can be admitted without any additional proofs being required. Assuming that the Will is sufficient and no issue is raised, certificates are prepared by the court and signed by the executor. These certificates allow the executor to take all action that the deceased could have taken, such as change or close bank accounts, transfer assets, etc.

The next step is for the executor is to take an inventory of the estate. In the case of smaller estates, this can be a fairly informal process. Depending on the situation, particularly if there are multiple beneficiaries, this may require appraisals to be done of larger items, such as real estate.
Once the executor has the certificates, he or she generally has the following responsibilities: 1) to collect the estate’s assets and information; 2) to determine any claims against the estate; 3) to manage the estate; and 4) to pay the estate’s taxes.

One important note: while the executor is responsible for paying claims of the estate, it is very important to remember that the executor also has the right to dispute any claims. I highly recommend that efforts be made to negotiate bills that come in.

An experienced estate planning attorney can help with all of the above. Although the process explained above is not incredibly complicated, many people find it helpful to have an expert to turn to who can help explain the process and take on all tasks which may otherwise seem overwhelming. If you have any questions or would like to discuss this process, please feel free to call me.

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