PROBATE OF A WILL

What is probate? Probate is the legal process that transfers title of property from the estate of the person who has died, known as the “decedent”, to his or her beneficiaries. Probate is often sought when the decedent owned real property or financial accounts and the financial institution has requested Letters Testamentary.

What is “probating the will”? A will is a legal document written to ensure that upon the decedent’s death, the decedent’s property is given to the people specified in the will. For a will to have any legal effect, it must be “proved-up” in a Probate or County Court to prove it was validly executed, that it is the decedent’s last will, and that it has not been revoked. In addition to offering the will for probate, the applicant can request that the Court appoint an executor or administrator for the decedent’s estate.

Who can initiate probate proceedings? The application may be made by the executor named in the will or by any heir, devisee, spouse, creditor, or any other persons having a property right in, or claim against, the estate.

What is the time limit for offering a will for probate? An application for the probate of a will should be brought within four years after the death of the person making the will. A will can be probated after four years, however, the person bringing the will must explain why he or she should not be held in default for not offering the will in a timely manner. Furthermore, all persons who would inherit in the absence of the will must be notified prior to the court considering the application.

Does the executor have to use the decedent’s attorney? There is no requirement that the attorney who drafted the will be the attorney who probates the will. The executor is free to hire the attorney of his or her choice.

TYPES OF ADMINISTRATION

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