What Is Probate And When Is It Required?


Published on January 23rd, 2020

It’s never the right time for talking about potential illnesses and death of our loved ones. However, we have to face the inevitable and take proper care of our earthly interests as long as we’re conscious and in health.

When we think of the earthly obligations of ours, the first things that come to our mind probably are settlement of our debts, getting life insurance to protect our family financially once we’re gone, and writing down the last will.

How does it get to reading the testament after one dies? What if the testament wasn’t confirmed by the solicitor on time? Or if there isn’t any testament at all? With Probate Advance we’ll try to answer those questions in the following article.

The Reading Of The Last Will

Even if the testament’s author made it to lawfully confirm their last will, it’s not that simple after the person dies.

Reading the testament to all the concerned people after the funeral can only take place after the judicial process called probate. Probate is, i.a., a judicial confirmation of one’s last will.

1. And If There’s No Legally Confirmed Testament?

In such a case, probate will be needed to split the inheritance among family members in accordance with the state law. A will executor and a judge will have to identify all the properties, investments, debts, and other possessions of the deceased, do a valuation and name the beneficiaries.

2. Who Can Be a Will Executor?

A will executor can either be appointed by the deceased in their testament or named by the court in the case if there was no testament left.

3. When Exactly Is Probate Required?

If the deceased owned any properties, had investments, and there are documented assets in their banks, the probate process will be required — whether there is a legal testament or not. All the aspects have to be confirmed at the court.

How Does Probate Actually Start?

A will executor is a person who starts this particular judicial process. The executor is obliged to deliver to the court the deceased’s death certificate and a copy of their testament (if there is such at all).

The executor must also submit two other crucial documents — petition for probate and notice of probate.

The executor fills out the documents together with the court. The notice of probate has to include names of all the beneficiaries named by the deceased or (if there is no documented last will) names al the known of relatives only.

1. What Does the Probate Process Look Like?

There usually are 4 steps in this process:

  1. Identifying the properties, investments, assets, and possessions of the deceased. At the same time, the last will of the deceased has to be verified legally.
  2. The payment of the inheritance tax and the debts and taxes of the deceased.
  3. Calculating and presenting the final balance of the inheritance’s value after regulating all the needed payments.
  4. Distributing the inheritance among the beneficiaries named in the will or accordingly to the court’s decision.

2. Are There Cases When Probate Is Not Required?

There are 3 situations when the probate process can be avoided:

  1. Legal co-assets called joint tenancy. The co-assets can be a shared bank account, a car, a house or an apartment, etc. It usually applies to marriages. If you and your spouse are co-owners and one of you dies, the other gets the full ownership automatically without probate required.
  2. The second situation when probate won’t be needed is life insurance. You need to name the beneficiaries of your life insurance policy the moment you’re signing the documents. Since the beneficiaries are known and formally confirmed, there’s no need to initiate the process.
  3. The last situation is establishing a trust. It’s a particular legal tool specifically used to provide appointed beneficiaries with your inheritance avoiding the probate process after your death.

3. Can I Contest a Testament? How?

You can contest the last will of the deceased in the following situations:

  1. You have the right to contest the will if you have proof that it wasn’t executed properly.
  2. Another reason can be the mental incapacity of the deceased at the moment of signing the final document.
  3. If the deceased was deceived and unaware of what document they were signing.
  4. If the deceased was a victim of undue influence during making and signing their testament.

If you have the reasons to consent a will you’re going to need to contact a probate lawyer. Hiring a probate lawyer will accelerate the process of solving the case of the unlawful last will.