Sorting Out a Will after Death

The time following a loved one’s death is difficult. Not only do you have to navigate your emotions, but you also need to sift through mountains of paperwork and legal obligations. This paperwork, which often includes a will, needs swiftly addressed. If you’re unfamiliar with the process, you can feel unprepared and overwhelmed. A trusted, well qualified legal counsel like Heban, Murphree, and Lewandowski LLC can simplify the process, answer questions about the will, and guide you through probate.

What is Probate?

The probate process is when the deceased’s estate, or property, is handed down to beneficiaries as indicated in the will. The estate includes money, property, investments, and belongings. The beneficiaries are the individuals who inherit said estate, as shown in the will. These can be friends, family members, spouses, or even charities.

If the deceased does not have a will, the beneficiaries are generally the spouse or children. Without a will, the estate can be distributed to the government or other unintended parties. If there is a will, there also needs to be an executor.

What is an Executor?

An executor can be a family friend or a finance professional. If you are an executor, you are tasked with wrapping up the financial loose ends, filing tax returns, paying liabilities, paying off debts, and more. These debts are paid with funds from the estate, and all financial obligations must be met before any beneficiaries can receive an inheritance. Having a professional executor is essential if the estate is complicated, if the inheritance is a significant amount, or if disagreements are expected between beneficiaries or outside parties.

How Does Probate Begin?

The probate process starts when the assigned executor delivers the will for probate court. The probate process is overseen by the court, and the entire process can take up to a year. The goal of probate is to ensure, through the legal process, that the will is valid, assets are appraised, debts and taxes are paid, and beneficiaries receive their share of inheritance as indicated by the will. A will can also be contested during the probate process.

What is a Contested Will?

If a will is being contested, that means that one of the beneficiaries (or someone who was named on a previous version of the will or who thinks they should be on the will) is challenging the validity of the will. The will can be contested for a few reasons:

1. The Testators Mental State is in Question

The testators (or individual who wrote the will) needs to have the mental capacity to understand the ramifications of every detail of their will at the time it is written. If there is a lack of testamentary capacity, the will may be invalid. This can also lead to undue influence. A caretaker or family member can manipulate the will or the testator to fit their needs or reduce the inheritance of another beneficiary. If this occurs, the will is not valid.

2. The Will Has Been Forged

A fraudulent will is one that has been signed by someone other than the testator with the intent to defraud. A professional can review a signature to ensure that it is valid by inspecting and comparing previous signatures.

3. The Will Was Created Without Professional Assistance

Writing a will is not a do-it-yourself project. The testator may inadvertently break the law by failing to meet requirements. For example, a will requires two witnesses to be present to witness the signing (and any modifications to) the will. Without this knowledge, one can easily create an invalid will.

Tips for Probate

You must make sure the probate process goes smoothly to ensure a prompt inheritance.

1. Ensure Creditors, Beneficiaries, and Heirs are Notified of Probate: A notification may be a published obituary in a local paper or direct contact via mail. Laws regarding valid notification vary from state to state.
2. Create an Inventory of the Deceased’s Possessions: This ensures everything is accounted for, all taxes are paid, and nothing goes missing during the process.
3. Continue to Pay Bills: By failing to keep up with utility bills, mortgages, and other liabilities, you may be on the hook. Keep thorough records, mainly if you use personal funds to pay these debts. Liabilities like taxes and medical bills are considered final bills and are paid at the end of the probate process.
4. Distribute Assets After Debts are Paid: An executor should not make distributions until after debts are paid and the period in which creditors can make claims has passed.

Need more help? Contact one of our experienced probate attorneys today!