What is probate?

Probate is a Court procedure where the validity of your Will is proved. When you die, all property, other than property passing to others directly, such as joint tenancy property, life insurance proceeds and retirement plans payable to a named beneficiary, may be subject to a probate proceeding. Your estate is generally probated in the county where you own property.

Why is probate necessary? Probate serves a number of purposes. First, to make certain that the Will that you left is valid. It is also necessary to appoint an executor to administer your estate as provided in your Will. Probate provides a method of converting assets to cash for distribution to beneficiaries, payment of creditors and taxes in a timely manner. Probate also acts to determine those entitled to share in your estate and directs the distribution of the property to those individuals.

What is the role of the Court in probate? All probate proceedings are subject to the jurisdiction of the District Court. Although the probate process itself takes little time, there has been widespread literature lately stating that probate unnecessarily delays distribution of property to the beneficiaries of the estate for significant periods of time. In the vast majority of cases this simply is not the case. Rather, the administration of your estate will proceed at the same rate as administration of a Living Trust. The same matters causing delays in administering an estate (e.g. legal challenges, tax audits, and sale of assets), also delay closing of the administration of your Living Trust.

Can my Will be contested? Yes, your Will may be contested in the event someone believes you did not have the capacity to understand the approximate amount of your property and who are your family members at the time you executed your Will. Also, if someone believes you were unduly influenced at the time that you executed your Will to leave property to them when you otherwise would not have absent their influence, then your Will may be challenged for this reason. These reasons are similar to those in which an individual may also challenge your Living Trust at the time you die.

Click here to contact a Wills and Trusts Lawyer near you and obtain a Free Case Evaluation.