Probating a Will
Administering an Estate with a Will
One of the first steps in administering a loved one’s estate is to determine whether he or she had a Will. If your loved one had been working on their estate planning, it is likely that they hired an attorney to help them. This attorney will be able to assist in locating any estate planning documents. If you are unsure whether or not your loved one worked with an attorney, he or she may have files in their home or office that contain records of meetings and correspondence with a lawyer, or drafts of estate planning documents. It is crucial to locate any Wills that your loved one may have left behind. If a Will exists, it may be filed with the court for probate. If a Will is not located, the estate may require administration in absence of a Will.
Steps to Probate a Will
Application to Probate Last Will and Testament and for Issuance of Letters Testamentary
Once the Will is located, an Application to Probate Last Will and Testament and for Issuance of Letters Testamentary may be filed. The Application describes the background of the decedent, states relevant parties, and names the proposed Executor who will begin administering the Estate. In this filing, the applicant also requests the court to issue Letters Testamentary, which are documents that can be taken to banks, insurance companies, and other institutions to inform them that the court has authorized the Executor to handle the affairs of the decedent. A copy of the Will and any Codicils must be filed with the Application. The applicant may set a hearing with the court so that a judge may hear the Application.
Civil Case Information Sheet
A Civil Case Information Sheet is a short form that details for the court the decedent’s information, names of the parties, and the attorney’s name and contact information. This form helps the clerk to assign a cause number, enabling the case to be easily tracked throughout the court system.
Original Will and Codicil
Within three business days of filing the Application to Probate the Last Will and Testament, the original Will must be filed with the clerk’s office. If any Codicils were executed in addition to the Will, the original Codicils must be filed as well.
Proof of Death
In addition to the aforementioned documents, the Proof of Death testimony must be prepared and brought to the court on the date of the hearing. The Proof of Death testimony contains the decedent’s name, date of death, place where the death occurred, domicile, and information about the decedent’s family and marital history.
After posting the Application and Will for a minimum of 10 days, a hearing may take place. At the hearing, a judge will determine whether or not to admit the Will for probate. The judge will hear testimony on the Proof of Death at this time. If the judge determines that the Will should be admitted to probate, the judge will sign an Order Admitting Will to Probate and for Issuance of Letters Testamentary.
Oath and Bond
Once the Order has been signed admitting the Will for probate, the named Executor must sign and file with the court an Oath in order to qualify as an Executor. If a bond is required, the Executor should obtain a bond. Most often, bonds take the form of a surety bond rather than a cash bond. The bond acts to protect the estate assets from any malfeasance of the Executor. Once the Oath has been filed and the bond approved by the court, the Executor is qualified to receive Letters Testamentary.
Letters Testamentary authorize the Executor to act and manage affairs on behalf of the estate. The Executor will take Letters Testamentary to financial institutions, title companies, and insurance companies to demonstrate that they are the person authorized by the court to handle estate matters.
Sometimes, a Will fails to name an Executor or the named Executor is unable or unwilling to serve. In such cases, the beneficiaries under the Will may collectively designate a person willing and able to serve as an Administrator. When a decedent’s Will is admitted to probate and an Administrator is appointed, the Administrator will receive Letters of Administration with Will Annexed.
Notice to Creditors
Within 30 days of appointment, the Independent Executor must publish a notice to all creditors in a publication circulated within the county where the Will is being probated. This notice gives all creditors to whom the estate owes money the opportunity to claim the debts owed to them. The notice should include the Independent Executor’s qualification date, address to which the claims should be presented, and the person to whom the claims should be addressed (usually the Independent Executor or an attorney). After publication, the Executor will file with the court an affidavit of the publisher along with a copy of the notice.
Notice to Beneficiaries
Within 60 days of qualification, the Independent Executor must send notice to all beneficiaries listed in the Will by certified mail, return receipt requested. This notice must include:
- The name and address of the beneficiary;
- The decedent’s name;
- That the decedent’s Will has been admitted to probate;
- That the beneficiary receiving the notice is named as a beneficiary in the Will; and
- The Independent Executor’s name and contact information.
A copy of the Will and the Order admitting the will to probate must be attached to this notice. A beneficiary may this waive notice by filing a waiver with the court.
Affidavit of Notice to Beneficiaries
Within 90 days of appointment, the Independent Executor must file an Affidavit of Notice with the court stating that notice has been given to all beneficiaries. This Affidavit must include:
- The name and address of each beneficiary notified of the probate by certified mail;
- The name and address of each beneficiary who filed a waiver of notice;
- The name of each beneficiary whose identity or address could not be determined despite the Independent Executor’s efforts to find them; and
- Any other information necessary to explain the Independent Executor’s inability to give notice to any beneficiary.
This Affidavit may be filed independently, or alternatively, with the Inventory, Appraisement, and List of Claims.
Family Settlement Agreements
Family Settlement Agreements are favored under law and enable those interested in an estate to resolve disputes and solve problems associated with the administration of estates. Issues commonly resolved within the context of Family Settlement Agreements include: excluded family members, poorly drafted Wills, failure to appoint Executor, undivided interests in property, ambiguous familial relationships, and the questionable testamentary capacity of testator.