Probate 101
Please ensure you read and understand the disclaimer before reading this article. Always consult a qualified lawyer for your legal advice.
What is Probate? Do you need a Probate? How do you get a Probate? Just like many other legal matters, Wills and Probate often come with a lot of questions. First of all, it helps to understand that Probate is the “official recognition” that is used by the Supreme Court that confirms the Will you are presenting is legal and valid in every way. It proves that all requirements of the Will has been met and grants the right for the wishes of the deceased to be carried out.
There are circumstances in which a Probate will not be needed. For example, when the deed of the home is made out to both the husband and the wife the home may not be transferred to the survivor of the deceased automatically. You will not need a Probate for annuities or an insurance policy where there is a named beneficiary that is still living. However, in many cases Probate will be needed. So who needs Probate and why do they need one?
Who Needs Probate and Why?
A Probate will be needed if a Will is being disputed by someone else. For example, if a Will leaves the majority of the assets to one member of the family and another member of the family feels that it was unfair or incorrect, then a Probate will determine if the Will is valid and should be honored. Another example would be if an institution needed to release funds from an estate, they would most likely require a Probate before doing so.
Most estates need a Probate because they have assets valued over $100,000. Assets include the home, personal property and the land. The person that needs to apply for the Probate with the Supreme Court will be the executor of the Will.
How Do You Go About Applying for Probate?
It is not very difficult applying for a Probate as long as you follow the proper steps. The first thing that you need to do is place an advertisement that you intend to apply for a grant of Probate in the area where the person that is deceased lived. Make sure you get a copy of this advertisement because you will need to present it to the Public trustee.
After you place the advertisement you will need to wait for a period of two weeks to make sure any other parties that may be involved will have time to make an objection to the Probate if they desire to do so. If someone does protest it will stop the grant until the claim has been resolved.
When applying for the grant for Probate you will need to have the appropriate documentation. This would include the following:
- The Last and Original Will Written By the Deceased
- The Copy Of The Advertisement
- The Certified Death Certificate Proving the Person Is Really Dead
The last step is to file the application for the grant with the Supreme Court that is the closest to where the person who is deceased was living and you must be the executor authorized to collect the assets before you can apply for the grant. Once the court receives the application for the Probate they will decide whether or not to grant it.
The Will that you present must be the “last Will” the deceased made before it will be accepted by the court. If the Will that you present is proven to not be the Last Will written by the deceased, then it can be revoked. For this reason it would be wise to speak with your attorney before filing for the Probate. Normally, you will not actually have to go to court because the process is preformed by a registrar unless the Will is being disputed.
What Happens When the Probate Is Disputed?
When the Probate is disputed before it has been granted a Caveat will be filed with the Supreme Court. In this case the Probate will not be granted until the conditions in question are resolved to the satisfaction of the courts. After reviewing the case if the Supreme Court is satisfied that everything is in order, then the Probate will be granted.
When the Probate is disputed after it has been granted then it can be challenged. There are quite a few requirements needed before you will be able to challenge a Probate that has already been granted. Due to this fact, if you are considering disputing Probate that has already been granted you should get legal advice first. This will help to make sure everything is in order and it may save you a lot of problems.
Applying for Probate can be a very expensive and lengthy process which is why more and more people now execute living trusts. If you decide to do this it is recommended that you enlist the help of your attorney to administer a trust and to make sure the deceased’s wishes are carried out.
|
Lawyer Articles