What is probate in relation to a will?
A will is a legal document that describes what one would like to happen after death in terms of your funeral, the care of your children, and most importantly, the distribution of your estate. When a person dies having drawn up his will, it is said that he has died with a testament in legal terms. The opposite of this would be to die intestate. Usually, a will specifically states the name of an executor, a person entrusted by the testator with the task of executing the will after the testator’s death. An executor can be a close family member, relative, trusted friend, or even a lawyer. An executor is usually referred to as a ‘probate estate’ in a will to cover executors of both sexes.
A will is very important because it makes things much easier for the family of a deceased person, especially when it comes to asset distribution issues. A will reduces the possibility of disagreement or misunderstanding between family members when trying to find out the deceased’s death wishes. However, administering a will is not as easy as it seems. This is because wills are required by law to be validated by a court, which could take a couple of months. Probate of a will is done by the executor by applying for a grant of probate in a probate court.
Probate is the legal process of identifying, validating, and distributing a deceased person’s estate under strict judicial supervision. The probate process includes the payment of outstanding debts to creditors and the payment of outstanding taxes, such as death and inheritance tax. A probate court is a special court that interprets the will and validates any claims to the estate made by third parties, such as the decedent’s creditors. The court oversees the probate process from the time the executor files for a grant of probate to the time it is granted and ownership of the estate is transferred to the beneficiaries.
In order for the executor of a will to obtain probate, the decedent’s will and an attorney-approved oath must first be filed with the probate court registry. The oath shows that the executor agrees to administer the wishes stated by the deceased in the will. The executor designated in the will is generally not recognized by law until officially appointed by the probate court as representative of the estate in probate.
If a will was drafted correctly, it takes less time for the court to grant probate. In case the beneficiaries are not completely satisfied with the court’s decision, inheritance law allows them to challenge the validity of the will in the same court. In such a case, the inheritance remains frozen until the court issues a judgment of validity. In case of intestate death, or if an executor is not named in a will, the grant of succession is called a “Letter of Administration”. It is also acquired through a judicial process and is granted to the person that the court considers most suitable to grant a will or distribute the inheritance.
A will or probate attorney is a trained professional who provides legal services to an executor. Such a professional helps the executor to fulfill the duties assigned to him by the will. A lawyer can be hired to provide advice or represent the executor in probate court. They can also help with the payment of estate and death taxes.