When Does a Will Go to Probate?

By Carrie Ferland

Probate is the process of administrating a testator’s estate by settling any claims against the estate and dividing assets among the beneficiaries. To initiate this process, the testator’s executor files the will with the adjudicating probate court, which then confirms the will’s validity and considers claims from outside parties. The executor is not required to submit the will for probate and in fact, the executor has the authority to handle most of the responsibilities the probate court would assume. However, under certain circumstances, the executor should consider initiating probate, if only to guard himself against personal liability and protect the testator’s interests.

When the Testator Dies

While no state requires estates to undergo probate, the executor should still file the will with the court immediately following the testator’s death. State law governing how long an executor has to file the will varies, but the average time is 30 days. Probate is essential for protecting the testator’s interests and assets, and the probate court assumes some of the executor’s responsibilities, easing the obligations and expediting the process for both estate and beneficiaries. For small, uncomplicated estates, the executor can submit the will for expedited probate to receive the same benefits while saving considerable time.

When the Will Is Contested

Even an ironclad will is still open to challenges from disgruntled beneficiaries, disinherited relatives and third-party claimants. A will's validity can only be contested by someone with proper standing such as beneficiaries or excluded relatives. When they do, it leaves the estate open for a legal battle. The executor responsible for handing these claims can get in over her head quickly, especially if a disinherited relative is after the assets. By filing the will for probate, not only does the executor pass the responsibility onto the court, she also significantly restricts the time a claimant has to contest the will.

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When Testamentary Capacity Is Questioned

To execute a valid will, the testator must be of sound mind and understand the implications of a will. If a question arises as to the testator’s capacity, the will should immediately go to probate. The probate court will initiate an investigation into the testator’s mental capacity at the time she executed the will, determine if the testator was under duress or coercion and ultimately decide whether the will is valid. By submitting the will for probate, the executor offensively protects the testator’s wishes by asking the court to rule the will as valid before a claimant can petition the court to put the will aside.

When Abatement Is Inevitable

When an estate owes more in outstanding claims than it holds in equitable assets -- including assets earmarked for beneficiaries -- the estate faces abatement. The moment an executor suspects the estate is insolvent, he should immediately file the will for probate. The court can then confirm the veracity of any outstanding claims against the estate, review the estate’s available assets and pay off the valid claims. The court will use any property not expressly disposed of in the will, including any residuary property, before using any gifts bequeathed to the estate’s beneficiaries. In the event the court does use property bequeathed to beneficiaries, the court will then proportionately assign dividends to the beneficiaries equal to the percentage that each beneficiary would have otherwise received. While the executor also has the authority to take this action without initiating probate, the court has the power to force settlement with creditors and protect the executor from personal liability to the creditors, the beneficiaries and the estate.

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Do All Wills Need to Be Probated?


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