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 It has no jurisdiction to probate invalid or superseded wills.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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The Difference Between a Will & an Inheritance

A will is a legal document in which the drafter outlines what to do with his property after his death. An inheritance, on the other hand, is a gift of money or property from a deceased person after his death. If the deceased person had a will, the will provides instructions as to the persons who should receive an inheritance from the decedent. If the deceased did not have a will, state law will determine who receives an inheritance from the deceased person.

Who Needs to Probate a Will?

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.

How Annuities Affect Wills

Estate planning is meant to ensure that the right people get the right assets as quickly as possible. Wills and annuities are both tools used in estate planning to achieve those goals. Generally, annuities have no effect on wills. It is important to remember that estate planning is subject to the probate code, which is defined by state law. If you are planning your estate or are trying to probate another’s estate as an executor, you may want to consider hiring a licensed attorney to help you with that process.

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