Who Needs to Probate a Will?

by Teo Spengler
An executor steers a will through probate.

An executor steers a will through probate.

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It is a common misconception that carefully drafted wills avoid probate. All wills in the United States must pass though probate -- a period of court-supervised administration -- to be effective. A will's executor begins the probate process by filing a petition with the probate court, and probate terminates with the distribution of estate assets to heirs.

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Wills

A will is a written description of how a person wants her property distributed at her death. No matter how carefully drafted, will provisions are not self-executing, and require court action to effect transfer of property title. The will usually names an executor to manage the estate until distribution. Although the executor owes the highest possible legal duty of care to the heirs, the court closely supervises the process to ensure that the testator's wishes are carried out.

Executors

An executor's first duty, after filing the fill with the court, is to prove the will. She calls will witnesses to establish both that the signature is that of the testator, and also that the testator knew the document he signed was a will. Once the court accepts the validity of the will and disposes of will challenges, the executor collects the assets of the deceased, pays taxes and bills, locates heirs and invests estate funds. At the end of the process, after court approval, the executor distributes property to heirs.

Heirs

An heir is a person standing to inherit property. If you are named as an heir in a will, it is in your interest to move the will into probate. No property passes to you until the probate court approves distribution. Although the executor generally files the initial petition for probate, most states also allow an heir to file the petition when an executor is reluctant to act quickly.

Living Trusts

One way to avoid probate is to use a financial vehicle called a living, or inter vivos, trust. The primary purpose of a living trust is to avoid probate fees, but trusts also carry tax benefits. The benefits of a living trust in a particular case depend on the size of an estate and the state's probate fee structure. A testator must make a living trust during her lifetime; it is not possible to transform a will into a living trust after her demise.