Who Needs to Probate a Will?

By Teo Spengler

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.


A will is a written description of how a person wants her property distributed at her death. No matter how carefully drafted, will provisions are not self-executing, and require court action to effect transfer of property title. The will usually names an executor to manage the estate until distribution. Although the executor owes the highest possible legal duty of care to the heirs, the court closely supervises the process to ensure that the testator's wishes are carried out.


An executor's first duty, after filing the fill with the court, is to prove the will. She calls will witnesses to establish both that the signature is that of the testator, and also that the testator knew the document he signed was a will. Once the court accepts the validity of the will and disposes of will challenges, the executor collects the assets of the deceased, pays taxes and bills, locates heirs and invests estate funds. At the end of the process, after court approval, the executor distributes property to heirs.

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An heir is a person standing to inherit property. If you are named as an heir in a will, it is in your interest to move the will into probate. No property passes to you until the probate court approves distribution. Although the executor generally files the initial petition for probate, most states also allow an heir to file the petition when an executor is reluctant to act quickly.

Living Trusts

One way to avoid probate is to use a financial vehicle called a living, or inter vivos, trust. The primary purpose of a living trust is to avoid probate fees, but trusts also carry tax benefits. The benefits of a living trust in a particular case depend on the size of an estate and the state's probate fee structure. A testator must make a living trust during her lifetime; it is not possible to transform a will into a living trust after her demise.

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Living Trust Vs Last Will in Texas


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Do I Have to File a Will Through Probate?

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.

How to File a Last Will & Testament

Probate is the court-supervised administration of a will. When someone dies, his will serves as a map to steer his estate into the hands of his heirs, but this does not happen automatically. The will names an executor to take charge of estate distribution, and the court requires inventories and reports to ensure accuracy and honesty. The executor's responsibilities include filing the will with the probate court, usually in the jurisdiction in which the testator resided during his lifetime.

What Is The Difference Between a Living Trust and a Last Will in North Carolina

There are two types of legal instruments commonly used for individuals to set the terms of the distribution of their assets upon death. First, a “last will and testament” is a legal document where the person drafting the will appoints an executor (or personal representative) to carry out the will’s instructions in the probate process. Second, a living trust is a legal document where the asset holder may unilaterally change it at any time. Laws for living trusts and probate are governed by state law. Accordingly, North Carolina state law governs the differences between wills and living trusts for residents of that state.

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