What Happens When a Will Is in Probate?

By David Montoya

Probate is the process in which the property of the deceased is divided and administered to his family after death. This process can be streamlined through a will -- a legal document that directs how the deceased, also known as the testator, wants his property to be handled by the courts. The testator will name beneficiaries and the property the beneficiaries will take. During the probate process, the court will do everything in its power to follow the directions and intent of the testator as outlined in the will.

Probate is the process in which the property of the deceased is divided and administered to his family after death. This process can be streamlined through a will -- a legal document that directs how the deceased, also known as the testator, wants his property to be handled by the courts. The testator will name beneficiaries and the property the beneficiaries will take. During the probate process, the court will do everything in its power to follow the directions and intent of the testator as outlined in the will.

Probate Property Idenficiation

The probate property in the testator's estate must be identified and collected for it to be administered by the executor and the probate courts. This includes determining whether or not the testator had a full, undivided interest in property. This is the only type of property that can be probated. Property that the testator only had a partial interest in, such as a house he took in joint tenancy with his wife -- this gives the wife a right to survivorship -- cannot be probated.

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Identifying Beneficiaries

All beneficiaries listed in the will must be identified. The court will distribute property according to state laws if any of the beneficiaries predeceased the testator or died before the probate process has begun.

Debt Safisfaction

Wills normally have a named executor who is responsible for taking care of the estate during the probate process. One of the duties the executor has is to make sure all debts and taxes the estate owes are paid off. Probate property cannot be administered before this happens.

Income Collection

The executor must collect all money owed to the estate. That money will then become part of the probated property.

Dispute Settlement

The executor must settle all claims against the estate. This includes determining whether a claim is valid and how to settle the dispute if it is not.

Objections

The family is given a chance to object to the will. Individual sections of the will may be questioned, or the validity of the entire will can be objected to. Such claims usually include that the testator signed the will under duress or that a particular beneficiary had an undue influence over the testator.

Disbursement

The property is finally disbursed after any pending matters have been resolved.

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Living Will Versus a Last Will

References

Related articles

Is a Will a Public Record in Illinois?

The law typically refers to individuals who draft wills as “testators.” In a will, the testator appoints a personal representative, sometimes called executor, to oversee the administration of the estate upon the testator’s death. When the testator dies, the personal representative must file the will for probate. State law governs probate and varies from state to state. In Illinois, once a will is filed for probate, it becomes a public record like any other court proceeding.

When Does a Will Go to Probate?

Probate is the process of administrating a testator’s estate by settling any claims against the estate and dividing assets among the beneficiaries. To initiate this process, the testator’s executor files the will with the adjudicating probate court, which then confirms the will’s validity and considers claims from outside parties. The executor is not required to submit the will for probate and in fact, the executor has the authority to handle most of the responsibilities the probate court would assume. However, under certain circumstances, the executor should consider initiating probate, if only to guard himself against personal liability and protect the testator’s interests.

Beneficiary Vs. Personal Representative

The death of a loved one is always a difficult time for family and friends. As such, a solid understanding of the probate process, which is the legal process of administering an estate, and the parties involved, helps the process move along smoothly and keeps unnecessarily stressful situations at bay. Two important players in estate administration include the beneficiary and the personal representative. While these two players have vastly different responsibilities, they are firmly connected to each other throughout the entire probate process.

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