Do I Have to File a Will Through Probate?

By Teo Spengler

Probate is a court-supervised administration of a will. Although not every estate passes by will, every will passes through probate in order to become effective. The executor -- either named in the will or appointed by the court -- steers the will into and through the probate process, collecting assets, notifying heirs, paying debts and ultimately distributing property.

Effective Date of Wills

A will is a document detailing the testator's intentions for her property after her demise. By definition, a will is not effective during the testator's life. Moreover, the "last will and testament" of a living testator is not necessarily the last such document, as a testator can revoke the will by tearing it up or by drafting a superseding will, and the most recent will is probated after the testator's death. When the executor proves its validity, the probate court puts into effect the property distribution described in the will.

Moving Wills Into Probate

A will never filed in probate has no effect on property or titles. Any heir -- or the executor -- can move the will into probate court by filing a petition for probate. The court requires proof that the signature is that of the testator who intended the document to be her will, and this proof is usually provided by testimony from will witnesses. The court also hears will objections and challenges before beginning the probate process. It has no jurisdiction to probate invalid or superseded wills.

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Probate Process

A will usually appoints someone to administer the will, termed the executor. He manages the estate of the deceased, paying bills, collecting debts and investing assets. The court requires and reviews reports on all financial aspects of will administration to ensure accuracy and honesty through final property distribution. The complexity of the process varies among the states, but many states have rewritten their laws to simplify probate procedures. Some states offer expedited procedures for small estates.

Avoiding Probate

Estate attorneys can propose vehicles to avoid probate. These range from living trusts -- which pass nominal ownership but not control during a person's lifetime -- to life insurance accounts with proceeds passing directly to named beneficiaries. If you're considering such financial vehicles, weigh the costs against the time and expense of probate in your particular state. However, no scheme allows a last will and testament to devise assets while bypassing probate court.

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Is a Will a Public Record?


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