Probate is the legal process of presenting your Will to the Court after your death to authenticate it, and appoint your Executor. Your Executor must be appointed by the Court in order to collect and distribute your assets as stated in your Will. However, because it is a legal process, there are many steps that must be followed before your Executor can be appointed.
The attorneys must obtain signatures from your heirs signifying they agree the Will is yours, and they will not contest it. Your heirs are your spouse and children and all must agree not to contest your Will before your Executor can be appointed.
If you don’t have a spouse or child, probate becomes even more complicated. Even if your heir is not a beneficiary, his waiver may still be required.
This can be very different in second marriage situations, especially if you have minor children or if you have a child you have lost contact with over the years.
If a child dies before you, then all of your deceased child’s children will have to agree not to contest your Will, but if they are under 18, the Court will need to appoint a separate attorney to represent them. The same is true if any of your heirs are legally incapacitated, such as a mentally disabled child or a spouse with Dementia.
In some cases, the Executor will have to submit an heir determination form, filing fees, a petition, a death certificate and affidavits from the individuals who witnessed your Will. Upon receipt of all of the appropriate information (and if no heirs contest it), the Court will appoint the Executor.
After your Executor is appointed, estate administration begins. It is a period of time the law permits the Executor to accumulate the assets and report to the Court how he or she intends to distribute them. In some cases, it can take a year or more. If you die without a Will, the process is similar, but the State decides who gets your assets, not you.
Unfortunately, probate is unpredictable. That’s why many people chose to avoid it, but if all of your heirs agree, your assets are centralized, and you at least have a Basic Will, it can go smoothly.
This website is designed for general information only. The information presented at this site is not and should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
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