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 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.

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.

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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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Duties & Rights of an Executor of a Will

References

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A will is a written document that specifies how a person wishes his estate to be divided. After the testator dies, the will is commonly subject to court proceedings known as probate. Relatives and other potential heirs may find it necessary to locate a will, especially when challenging or questioning the estate proceedings; others often find wills useful when researching family trees. Wills and estate proceedings are typically filed in the probate court of the county or counties in which the deceased had a connection, such as residence or property holdings.

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