The Will: The Document that Lives On
A will is defined as a legal document prepared by an individual to stipulate their wishes regarding the administration and distribution of their personal property to after their death. Many people do this to prevent disagreement between heirs regarding the distribution of estate assets. After all, no one wants their siblings squabbling with their domestic partner in probate and family court over who gets what.
Failure to prepare a will detailing the distribution of estate assets leaves the state in charge of decision-making. This is called an intestate estate, and the lack of a will makes the probate process a complex procedure.
Types of Wills
The types of will differ from each other. A person’s choice of a type of will is largely dependent on their situation as well as their plans for their personal property. There are nine different types of wills to choose from when preparing a will, all of which are highlighted and explained below.
1. Living Will
A living will also be called an Advance Healthcare Directive, is good for planning one’s life regarding medical care in the future. This type of will is needed to convey the wishes of the testator (the person creating the will) regarding what they want to be done in the event of when they are not able to say what they want. This can sometimes happen due to a coma or any medical condition or emergency. This type of will become ineffective as soon as the testator passes away.
2. Simple Will
As the name implies, a simple will is a will that is less complicated. It does not contain a lot of clauses and therefore has simplified procedures for probate. This, however, should not get confused to mean that simple wills are not very effective. All plans regarding heirs at law, ownership of property, and even real estate can be made in a simple will provided the estate is not too complicated or large.
3. Holographic Will
A holographic will is not so common and is not recognized as valid in all states. Holographic wills are handwritten wills that dictate the wishes of the testator in unexpected or life-threatening circumstances. They usually only come up in extenuating situations.
4. Online Will
An online will, as the name implies, is a will one prepares over the internet with the help of legal documents or an online will company. The concept of online wills is pretty new, and you must take care when preparing a will online. You have to ensure that the will is prepared based on the provisions of the state in which the will is binding. After all, you want the will to be accepted by the county probate office when the time comes.
5. Testamentary Trust Will
A testamentary trust will otherwise be referred to as a will trust or trust under will, is different from other trusts because it is typically not formed until the testator’s demise. A testamentary trust is written inside a will to dictate the distribution of the decedent’s real estate after they have passed. It is most effective when the testator wishes to provide long-term support for their beneficiaries long after their demise.
6. Joint Will
A joint will refers to a will prepared for two individuals in one document. This type of will is often used by spouses who want to make each other beneficiaries in each other’s will. They may wish to do this in case one of them should pass away before the other. However, a joint will can also make provisions for final legal heirs, like their children or family members, when they both pass away.
7. Nuncupative Will
Also known as a verbal will or an oral will, a nuncupative will refers to the stipulations of a dying person spoken aloud to people who will serve as witnesses to the will. This type of will is not deemed valid in some states. In some states where they are accepted as valid, it is required that the witnesses of the will put it into writing right after the testator states their wishes. In some states, a nuncupative will, even if deemed valid, will not get accepted if made by a civilian. This type of will is more common in England than in the United States.
8. Pour-Over Will
A pour-over will is a type of will that provides more privacy than a regular will. This type of will works hand-in-hand with a revocable living trust. It makes it possible for the assets of a decedent that hasn’t gone to any beneficiary to get poured over into the decedent’s trust.
9. Deathbed Will
A Deathbed Will, although not as effective as other types of wills (due to its complex administration procedures), is very similar to a nuncupative will. This type of will, made on the deathbed of the testator, expresses what they wish to happen to their belongings when they finally pass away. In most cases, a deathbed will causes conflict for the survivors because questions are raised as to the mental wellbeing of the testator thereby making it very easy to contest.
Probate: Fulfilling Last Wishes
The term “Probate” refers to the process of administering the estate of a deceased person (probate division). This process involves, but is not limited to, the organization of any type of property and possession as well as the distribution of their death benefit or benefits to legal heirs. This happens after the settlement of bills, taxes, and debts (if any). Items subject to probate include tangible property and intangible property such as:
- Bank accounts
- Real property
- Estate funds
- Stocks and bonds
Types of Probate
Now that you have a general idea of what probate is, let’s go over the types of probate. Generally, there are two types of probate: formal and informal probate.
Formal probate refers to the official, comprehensive, and all-inclusive court process. During formal probate, the will is determined valid and the court decides how the will should be administered through a public record.
During formal probate, specific steps are stipulated by the probate court. These must be followed by the executor or administrator within a stipulated time frame under the court’s supervision.
Formal probate often takes time and costs a lot of money (probate fees), especially when dealing with very large and complicated estates. Therefore, before going through formal probate, you should get prepared to meet all the probate costs.
Initially, in the days after death, the executor is required to submit a death certificate for the deceased. This helps indicate their exact time of death, hence determining when the probate process should begin. Then, when filing formal probate, the executor must notify the legal heirs and potential beneficiaries through a legal notice.
Informal probate is basically an easier way of administering real property in an estate. The informal probate process can vary distinctly from state to state. In California, for example, the informal probate process is only an option if the value of all the properties in the probate estate is below $150,000. In most cases, the probate court’s involvement is not necessary for the informal probate process.
The probate court, by definition, is the court with jurisdiction to handle matters such as wills, conservatorships, and estates. The probate court must verify the authenticity of the will (and the death certificate), ensure the original documents got signed legally, and ensure that the stipulations of the will are adhered to per state laws.
All probate costs incurred are directly payable to the probate court. It also handles situations such as will contests and litigation and the provision of any legal advice regarding probate.
The Main Role of Probate Court
The main role of the probate court in the probate process is to oversee the whole process. It supervises proceedings, ensures the will is valid and watches to make sure all players (the executor or administrator, the legal assistants, and the beneficiaries and survivors) adhere strictly to the probate laws of the state. This court-supervised process aims to ensure the effective delivery of justice and eliminate all inadequacies in the administration of the will.
Generally, the court’s roles vary depending on how the probate process goes. Major factors that determine the roles of the court are testacy and intestacy, will contests and objections, and any litigation processes.
What Happens at a Probate Court Hearing?
The main event of a probate court hearing involves the judge appointing the executor of the will. Afterwards, the judge lists and explains the duties and obligations that bind the executor. These include asset appraisal, contact of beneficiaries and creditors, payment of debts and taxes, and closure of the estate. The judge does this so the executor understands exactly what they’re getting themselves into before agreeing to fulfill the role.
Probate Court with and without a Will
When an individual dies, the probate court finds out if the deceased person has left a will behind. If there is a will, the court then moves to probate the will. If not, the process is quite a bit harder. Let’s take a look at both scenarios here.
Probate Court with A Will
Probating the will is the legal process undergone to determine the validity and authenticity of the will. If the will turns out to be valid and authentic, the probate court then moves to appoint an executor to administer the will and distribute the assets according to the decedent’s stipulations (the cost of probate also has to be met). However, if the will turns out to be invalid, the court reviews the situation and rules on how the assets get distributed per state laws.
Probate Court Without a Will
What happens when an individual dies intestate, which simply means the individual has died without a will? The probate court rules for the decedent’s assets to get passed down to their immediate survivor or next of kin in what is known as the law of intestate succession. The court also stipulates how assets are allocated between other survivors according to state laws. Some of the items not subject to probate include:
- Retirement accounts
- Beneficiary designations
- Assets under the revocable living trust
- Any life insurance policy
- Any community property
Wills and Probate: What Do They Have in Common?
Now you know all about the definitions of the main contexts of wills and probate. Before we wrap up, let’s take this a step further by explaining the relationship between wills and probate.
Probate is not essentially required for a will or property. Probate is only required if the decedent, at the time of death, owns assets for which proper arrangements to avoid probate haven’t been made. Such arrangements can include revocable living trusts, joint tenancy, and the like. In absence of these, probate is unavoidable.
Summarily, as much as a lot of us avoid thoughts of death, preparing for the inevitable remains an integral part of life. For this reason, it is important to get familiar with the above concepts regarding the administration of estates.
To find out more about wills and probate and the process in California, check out other posts from us on probate code and how to probate a will. And should any need arise on your end for legal documents, feel free to reach out to A People’s Choice for comprehensive legal templates as well as assistance from our legal professionals. Contact us today and book your probate appointment!