Just like birth, death is a constant in the cycle of human life. Every living thing will die someday and as of now, no one has figured out a way to live forever (even though a lot of people want to). So, as much as we would like to live forever, it’s smart to prepare for the inevitable. This leads to questions such as, What does “probate a will” mean?
It is in preparation for the events that happen after death that people write their wills. This lets them plan and dictates how their estate and wealth get handled when they are gone. On the other hand, if an individual dies intestate (without a will), the court steps in through a legal process. Personal representatives are appointed to administer the decedent’s (deceased person’s) estate assets according to the state intestacy laws that direct the distribution.
Let’s say, in this case, that the decedent planned accordingly and has written and prepared a will before their death. The probate court then has to determine if the will can get admitted to probate. In other words, probating a will refers to the actions taken to prove to the probate court that the will is veritable and unadulterated by the personal representative to the deceased person.
In this article, we’ll explore why probate is important and the basics of the probate process. By the end of this article, you’ll have a definitive answer to the question, “What does ‘probate a will’ mean”?
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Why Should You Probate a Will?
Probate is not without its downsides. It can be a very lengthy and expensive process. Despite this, there are still several reasons why a will must get probated through formal probate proceedings. The probate process isn’t fun, but it gets designed to cover every little aspect that needs to be cared for to finalize an estate and distribute it among the primary heirs and potential beneficiaries. We’ll look at those below.
1: Will Verification
When probating a will, the first step the probate court will take is the certification of the will’s authenticity and validity. If a will turns out to be invalid, the wishes of the testator (person who wrote the will) as outlined in the document will not get granted during the probate proceedings. This step is important because it prevents a will that is a product of coercion or tampering from going into effect after failing to adhere to the probate procedures. It is important to note that a will cannot get considered legally valid until it is probated in a court-supervised proceeding; in other words, until you probate a will, it is not authentic.
2: Executor Appointment
As part of the probate court proceedings, the executor stipulated by the testator in the will is officially appointed to oversee the probate procedures and distribution of the property to potential beneficiaries and primary heirs. The court decides if the named executor in the will can carry out the duty judiciously and according to the deceased person’s wishes.
3. Asset Assessment
Probating will also help ascertain certain facts about the estate assets. The probate process ensures that all the assets stipulated in the will are truly those of the decedent and need to undergo the entire process of probate. It then safeguards them and distributes them according to the wishes of the decedent as outlined in the will that they wrote before their time of death.
4. Beneficiary Identification
Probating a will helps to verify that the beneficiaries of the will are alive and capable of inheriting the assets that are willed to them. This is necessary because certain survivors can’t inherit (minors and pets) and require further stipulations through a formal probate proceeding.
5. Debt Settlement
The probate process confirms that the estate’s outstanding debts and unpaid debts undergo settlement.
6. Asset Disbursement
Probating a will helps to make sure the entire estate is closed after the administration of estate assets to beneficiaries.
Probating a will guarantees the smooth flow of the legal proceedings that involve granting the last wishes of a decedent. It’s a way of making sure unpaid debts get settled, assets get distributed, and all questions answered.
Before embarking on the journey of probating a will, it is important to first be sure and determine if probate is required. It is important to note that a will, under some circumstances and situations, does not necessarily have to be probated through a formal legal procedure. Various situations will not require a will to get probated and any legal action taken. Here are some common situations that don’t require probate or legal representation:
- Assets held jointly with rights of survivorship
- Assets or type of property with named beneficiaries who are payable upon the death of the testator or owner of the personal property
- Revocable living trusts that render probate unnecessary through hiring a legal representative
- Small estates that simply require an estate affidavit from the spouse or survivors of the decedent to take ownership of the real property. Having clarified that, let us proceed to take a look at why a will should get probated and every probate cost met.
Check out this article for more information on non-probate assets and a simplified process of probate. We’ll also examine some of these situations more closely later in this article.
What Does Probate a Will Mean? Probate Steps
Some estates may or may not need to go through probate. For example, a titled real property that needs ownership transferred will need to go through a formal probate hearing. But, if you’ve determined a case does require probate administration, it helps to understand the steps involved. Below, we will highlight the steps to take when probating a will.
1. File a Petition to Begin Probate:
A petition has to be filed at the probate court in the decedent’s county of residence to begin the probate process. This petition contains the will and documents requesting the legal appointment of the executor. If approved in a court hearing, the will gets legally confirmed as valid, the executor is sworn in, and the probate process kicks off.
2. Give Public Notice:
A notice has to be made public and or mailed to all beneficiaries, heirs, and creditors of the estate. This notifies them that the person has passed away and the probate process has begun. Doing this, as required by the probate court, makes people who have a claim in or against the estate aware of the death of the decedent. It essentially starts a countdown for them to make their claims.
3. Take Inventory of the Estate:
Taking inventory of the estate is an important step to take in probating the will. Doing this helps to determine the estate’s value (financial assets, real estate, and other valuables). The estate value is an integral part of probating a will because it helps to determine if there are enough assets in the estate to settle its debt and bills.
4. Settle Debts, Bills, and Taxes:
After taking inventory of the estate, the next step is to settle the payment of bills, debts, and taxes of the estate. Being the first expense in the probate process, all necessary fees and bills must get paid. Expenditures such as federal and state estate taxes, income taxes, probate attorney fees, filing fees, funeral expenses, etc. have to get settled before distributions can begin.
5. Distribution of Assets:
Having paid all expenses and settled all debts and claims, the remaining assets must get disbursed to the rightful heirs or beneficiaries according to the decedent’s stipulation in the will.
6. Closure of Estate:
When all assets and properties get distributed, all taxes and bills paid, and all debts settled, all receipts and audited records of activities and transactions get submitted to the courts. With this goes a request asking for the estate to be closed and the executor relieved from the role. This signifies the successful end of a probate process.
When Probate Isn’t Necessary: The Details
If an individual dies having prepared a will, probate is required to carry out the instructions of such will. However, there are arrangements that a decedent can make before their death to help their heirs avoid probate. These arrangements will get highlighted below. In situations like this, probate is entirely avoidable.
1. Revocable Living Trust:
A trust is a fiduciary arrangement that gives a third party or trustee the right to hold assets on behalf of a beneficiary or beneficiaries. In a revocable living trust, the assets in the trust aren’t subject to probate. Revocable living trusts enable the beneficiaries to access the assets bequeathed to them more quickly than a will would, thereby making the process easier, saving energy, and saving the costs of probate and taxes.
2. Joint Ownership:
Avoiding probate by having a joint ownership title on major assets with your spouse or beneficiaries is common. To do this, you have to prepare a document stating how you want to hold a title with the beneficiaries. Joint ownership can get used to avoiding probate in ways such as joint tenancy with rights of survivorship, tenancy by the entirety, and community property with the right of survivorship.
3. Transfer on Death Deal:
In California, real estate owners can avoid the stress and expenses of probate with a transfer on death deal. This allows the property’s ownership to transfer directly to the stipulated beneficiary upon the death of the owner, eschewing probate.
What Happens If There Is No Will?
Let’s say there is no will, which means the decedent died intestate. The assets will get distributed among their survivors according to the state intestacy laws on intestate succession. Therefore, the process will still get supervised by a probate court.
This goes against the common misconception that probate can get avoided without a will. If there is a will, the probate process will proceed as a testate estate; if there isn’t one, the process proceeds as an intestate estate. Either way, probate is required.
What Does Probate a Will Mean? With Our Help, It’s Easy!
The money, time, and energy required to probate a will successfully have made for a lot of questions regarding the concept of probating a will. How can someone go about it simply or avoid it entirely? This is why A People’s Choice exists—to provide you with the helpful information and legal documents needed for a successful probate process at affordable costs.
Take a look at other helpful articles on probate in California to provide you with the information you need to kick start a successful probate process. If you’re ready to start probate, contact us today. Likewise, if you need help with estate planning, we’re here for you!
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