What Happens in Probate?

September 17, 2020
Will Burchett

Probate is the process of transferring property upon a person’s death. When an individual writes a will, they are formalizing their intentions as to the transfer of their property and possessions at the time of death. In probate, a will is proven in a court of law and accepted as a valid public document, upon which property can be distributed as requested.

Contested or Uncontested Probate

During the process of probate, a beneficiary (named heir in the will, usually a family member of the deceased) may object to the terms and validity of the will. This often happens when a disgruntled beneficiary feels they are entitled to a larger share of the decedent’s property. An heir cannot contest the will simply because they feel they have not received a fair share– they must state a valid reason for their claim. Some arguments often raised by a beneficiary contesting probate include:

  • Undue Influence: The deceased was improperly influenced in making decisions as to the distribution of their property. Undue influence becomes an issue when someone uses a special relationship they have with the will-maker (at the time the will is drafted or altered) to obtain property that they would otherwise not have obtained. This is often a child of the deceased who leveraged their relationship with the now-deceased will-maker to incur further benefit from the will.
  • Lack of Capacity: The deceased had insufficient mental capacity at the time the will was executed, and thus did not know what they were doing. Common mental health issues associated with old age such as dementia are commonly the root cause of such a claim.
  • The deceased did not follow the necessary legal formalities in drafting their will. If important steps in the process of drafting a will are missed, a beneficiary could have a valid reason to contest probate.

The arguments mentioned above can lead to significant headache for all involved and can result in substantial alterations to a will. However, the majority of probated estates are uncontested.

The Process of Probate

Normally, when a will is executed the decedent will have named an individual to take over management of their affairs. This person is known as the executor. If an executor has not been named by the decedent, the court will appoint an administrator to settle the estate and fulfill the duties of an executor. Such duties would include:

  • Paying any and all debts, claims, and taxes owed by the estate;
  • Collecting all probate property of the deceased;
  • Collecting any rights to income, dividends, etc.;
  • Settling disputes;
  • Distributing or transferring the remaining property to the heirs.

Creditors may have a claim on the property of the estate. The probate process itself also brings several costs that are usually paid out of estate assets including the administrator’s fees, attorney’s fees, and general court costs. For these reasons, property is not distributed to heirs until all debts and claims owed by the estate have been settled. And while the deceased may leave property to whomever their so choose, in certain situations the decedent’s wishes may need to be overridden by the court. For example, a living spouse would be entitled to a portion of the decedent’s property regardless of the designations made in a will.

Why Do You Need a Will?

Every adult should have a will. If you have not formalized your intentions regarding how you would like your property distributed, untimely death could bring unnecessary and costly litigation to those you care about the most. The passing of a loved one can take a significant emotional toll on anyone, and the added stress of legal battles over your estate only add to the grief.

Sumsion Business Law

Avoiding the financial and emotional turmoil of will contests and other legal issues starts with choosing an experienced estate planning attorney. Here at Sumsion Business Law we have the experience and know-how to make the process as simple as possible. Whether it’s as simple as drafting your first will, or as complex as a contested probate, estate law can be confusing and hard to understand. But here at Sumsion Business Law, we can help!

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