After the death of a person, their assets and valuables need to be distributed amongst their loved ones and other beneficiaries. Most often, this information is available in the will of the deceased person.
The Will, before being successfully executed, however, needs to go through a probate process. Probate is a legal procedure through which the will of the deceased person is made valid, executed, and fulfilled according to the wishes of the testator (person who made the will).
Regardless of how many steps are taken to avoid this process, it is legally required to file the will at a court. And this is how you or the executor of the estate can do it:
How to Probate a Will
Find a court
Typically, a will is registered at a probate court, county clerk, or “register of wills”, where the deceased person resided. The executor has to do this within 90 days of the death of the testator or after receiving the notice of death.
It is important for the petition to be filed before a competent court. You may need a higher court to issue probate for high-value immovable assets.
File a petition
The executor needs to submit the original will to the court to receive a grant of probate. This is when the probate process starts.
Next, they need to file a petition with the court detailing the names and addresses of the testator’s legal heirs and any other named beneficiaries. This will make sure they receive notices from the court.
If someone who is not the executor of the estate finds the will of the deceased, the original will still needs to be filed. If possible, this person needs to send a copy of the will to the person named as an executor in the will.
The executor will have to pay the applicable court fees depending upon the value of the assets.
The cost of obtaining probate varies from state to state, based on what the District Court grants. The fees generally depend on the value of the assets that go through probate. Moreover, filing the will can have a fee of not more than $50. In some states, there is no fee for filing a will. In addition to court fees, the petitioner also has to bear the lawyer’s fees.
The executor is reimbursed for these costs at the end of the probate process out of the estate of the deceased.
Next, the court asks the petitioner to establish the testator’s proof of death, proof that the testator’s will has been validly executed, and to confirm this is the last will of the deceased.
This can be done simply by submitting the death certificate of the testator and a statement from one or more witnesses of the will. The statement could be a notarized document called a self-proving affidavit, a court testimony, or a sworn statement signed by the witness.
Call for objections
Next, the court calls for objections by issuing notice to the next of kin of the deceased to raise objections. Following this, the court orders the publication of a citation of the probate petition to notify the general public.
If there are no objections, then the court grants the probate.
If there are any objections with respect to the assets and digital assets in probate or the distribution process, etc., the probate petition becomes a suit, and the parties will have to get through a court proceeding. The court will then pass judgment in the probate suit based on the evidence and arguments presented.