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Dealing with legal matters pertaining to estate planning, last will and testament, and probate can be complicated, given its connection to a death of a loved one.
When the family is in grief, the last thing they want to take care of is the financial aspect of things. But for them to settle and finally move on, they need to complete certain steps to handle the finances. These can include the process of going through probate.
By definition, probate refers to a legal process designed to examine and validate a deceased person's will in a way that their wishes are carried out by the executor named and designated in the document.
Once it's finished, an official document known as a 'grant of probate' is awarded to signify the court's recognition of the will's validity as well as the appointment of the person in charge of the administration of the estate.
To learn more about probate, below are the three things you need to know from the get-go:
1. There are different probate terms
Just like other legal proceedings, it's important to get familiar with the common probate terms being used throughout the process.
This is especially true if you decide to draft a will on your own or with the help of a reliable online platform like Willed.
When you know how these terms are used, you'll know what to do to make sure everything goes smoothly even after your passing. This can include the likelihood of your will being probated in court.
To be prepared for this legal circumstance in the future, the following are some probate terms to remember:
- Decedent: This refers to a deceased person whose estate is subject to probate.
- Intestate: This is a situation wherein someone dies without a will.
- Intestacy: These are the state laws that provide the guidelines for determining the distribution of a deceased person's estate.
- Notice of probate and creditors: This refers to a notice the executor needs to furnish to the heirs and the creditors of the deceased.
- Letters testamentary: This is a document issued by the court that authorises the executor to carry out the wishes of the decedent in the will.
2. Probate is necessary for various situations
Another important thing to learn about probate is when it may be required under certain circumstances. Generally, probate may be necessary in the following cases:
- When a person passes away and leaves specific kinds of assets to certain beneficiaries. For example, if that person was a bank account holder and there's money in that account, the bank may require a grant of probate before they give the funds to the executor;
- When the deceased person owns a large number of shares or investing assets in a company or trading platform, the latter may ask for a grant of probate before releasing the shares;
- When the deceased person's will is contested by a family member or anyone who has an interest;
- When the deceased person's real estate needs to be transferred but a grant of probate is required before doing so.
3. Application for probate Is required to carry out the will
To fully understand what probate is all about, you need to know the process of applying for probate in the state where the assets are held. However, the step-by-step procedures for the application of probate may differ in various territories. As such, it can be a good idea to check with your local court regarding the specific rules.
But even if each state comes with a different application process, some general rules should be followed from the beginning such as:
- The executor should advertise their attention to apply for probate, which is 14 days before the formal application is made. This advertisement or notice is necessary to allow an interested party to refute the appointment of the executor.
- The executor should prepare a detailed list of inventories of assets and an affidavit. If there's an issue regarding a damaged will, several affidavits should be issued during the application process.
- The executor should prepare the will of the deceased person as well as their death certificate to be submitted to the court.
Thinking about your family's future by preparing a will can help reduce arguments and stress in the long run. But given the complications associated with estate planning, your will may have to undergo probate before the executor can carry out your wishes.
Therefore, it can be a good idea to keep the information mentioned above in mind, so you'll be prepared in case something doesn't go as planned.
By knowing the fundamentals of probate in your state, you can rest knowing your estate plan is drafted with the said legal proceeding in mind.