Wills in Probate Court

by A.L. Kennedy
Wills are overseen by state probate courts.

Wills are overseen by state probate courts.

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When a person dies, the instructions in his will must be carried out in probate. Probate is overseen by state courts, and has a twofold purpose: to check that a will meets the requirements for state law, and to ensure that the instructions in the will are followed. How long probate lasts depends on the details involved in each estate.

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Opening Probate

Probate begins when the will is filed with the probate court. Usually, the will is filed along with a petition to open the probate estate, which is the formal application to the court to begin probating that particular will. Anyone who has the original will may file it with the probate court in most states, or may give it to the executor or a family member for filing. Most states allow courts to compel the filing of a will and to penalize, with a fine or imprisonment, anyone who refuses to file the will for probate.

Probate Requirements

Probate courts have certain requirements, set by state law, for each will they handle. First, the probate court checks to see if the will has been made valid by following the legal requirements for wills in that state. In some cases, a probate court calls witnesses to testify about the will in order to ensure that it is valid. Once the probate court decides that the will is valid, it appoints an executor who is usually identified as such in the will; if the will does not appoint and executor, the court will choose someone to act in this capacity. The probate court then supervises the executor's work on the estate and hears any will contests that are filed during probate.

Executor

The executor is responsible for carrying out the instructions in the will under the supervision of the probate court. While the will is in probate, the executor must inventory the estate and provide the court with a copy of the inventory; contact the estate's creditors and pay any bills they send in; manage the assets of the estate so they do not become damaged or lose value; and, finally, distributes the estate to the beneficiaries named in the will. In most states, the executor reports to the probate court at each step in this process.

Will Contests

A will contest, also known as a will challenge, is a lawsuit in which a beneficiary or other interested person claims that the will is not valid. The probate court hears all will contests. The executor is usually required to appear in the probate court on the will's behalf, but she may hire an attorney to represent the estate, if necessary. Will contests can extend the time the will is in probate, sometimes for years. The estate cannot be distributed until the question of whether the will is valid is settled.