Probate
The corrected spelling of the sentence is: “Whether a will has been written or not, property must be legally distributed. This process is called probate.
With a Will...
If your loved one left a written will, the process for probate is generally simpler, provided that the will is well-written, properly executed, and uncontested. We begin with an “Application for Admission of Will to Probate and for Issuance of Letters Testamentary.” This is a document that we will draft for the proposed executor of the estate and submit to the court.
Once the will has been properly published, and appropriate notices have been provided, we prepare documents titled “Proof of Death and Other Facts,” “Oath of Executor,” and the “Order Admitting Will to Probate and Granting Issuance of Letters Testamentary.”
Next, we schedule a prove-up hearing. During the hearing, we present these documents and the testimony of the proposed executor, and the court generally approves it all, concluding the process.
Afterward, we assist the Executor with the administration and transfer of estate property and the preparation of the “Inventory, Appraisement, and List of Claims.” Once that document is complete, we file it with the court to formally close probate.
And there you have it – the process is complete.”
Without a Will....
If there is no written will, the process of probate becomes more complicated and expensive but remains equally necessary.
In this circumstance, there are two applications:
The first is for “Determination of Heirship.” Since there is no will, an interested person must apply for the Court to determine who the heirs of the estate are and to propose a list of such heirs and their respective interests in the estate.
The second is an “Application for Independent (or Dependent) Administration and for Issuance of Letters of Administration.” This document also sets forth who we believe the heirs to be but also names an individual to be appointed as the administrator of the estate. The administrator will have the same powers, basically, as an executor named in a will.
The next step is the service of these documents, which is done by a combination of certified mail and publication. Once publication is completed, then we file a “Motion and Order Appointing Attorney ad Litem for Unknown Heirs.”
The attorney ad litem is an independent attorney appointed by the Court to conduct an independent investigation to determine whether all heirs have been included in the Application for Determination of Heirship. This attorney will talk to the applicant and at least two other disinterested witnesses and will then prepare a report for the court. There is a fee for this attorney that will be paid by the applicant from the estate.
Once this report is done, we set a hearing for proof up with the same Oath, Proof of Death, and an Order Granting Independent Administration and Issuance of Letters of Administration. Once this order has been entered, we then have to do another publication of notice to creditors. Then we prepare the Inventory, Appraisement, and List of Claims and file it with the Court no later than 90 days from the Order.
Will Contests...
Poor drafting of wills can lead to and sometimes cause family members to contest the validity of the will.
At Carpenter & Associates, we seek to prevent this by ensuring our wills are drafted with the greatest care and clear, unambiguous language. If you come to us for probate, however, and a will contest ensues, our probate team is fully prepared to engage and protect your interests and those of the estate.
Regardless of the complexity, our team here at Carpenter & Associates is eager to assist you with all of your estate planning and probate needs.