Probating a Will
Initiating the probate process requires a beneficiary or other party in possession of the will to deliver it to the court. The judge overseeing the estate will then make sure that the document satisfies all requirements of the state’s statute that governs the creation of wills. Once the court is satisfied that the will is valid, the person designated as executor must begin liquidating the estate -- subject to court oversight -- by distributing property to existing creditors and beneficiaries of the decedent. However, if the will is denied probate, liquidating the estate and distributing property is subject to an alternative process – one that may not necessarily reflect the decedent’s wishes.
General Will Requirements
Every state creates the legal requirements to which a will must adhere to be legally enforceable; however, the laws are similar across all jurisdictions. When making a will, the will maker, known as the testator, must be at least 18 years old, mentally competent and fully understand all provisions of the will. The document must clearly state that it reflects the testator’s final wishes concerning how he wants his property distributed at the time of his death. In most states, the will must be a written document that includes the testator’s original signature as well as the signatures of at least two witnesses.
Contests Causing Denied Probate
Courts will assume that a will clearly reflects the testator’s intentions unless someone comes forward and contests that assumption. In many will contests, people claim that the decedent was incompetent at the time he drafted the will or accuse one of the beneficiaries of exerting undue influence over the decedent – both of which are grounds for the will to be denied probate.
Probate Denial Consequences
Once a will is deemed void and denied probate, state intestacy laws govern which family members will receive a decedent’s property, with closer family members given priority over more distant relatives. A probate court typically provides a surviving spouse and the decedent’s children with superior claims to the estate before other relatives.