There are many reasons why a Will might go into probate, today we are going to discuss the top 3 most common reasons a Will goes into probate. Probate law is a very intricate set of laws that will vary depending on what state the probate is taking place. When a will must be probated, it is wise to contact a probate attorney as they will know your given states laws and will be able to help you through all the steps in the probate process. Before we can discuss the reasons a Will goes into probate we need to first identify what exactly probate is.
Probate, what is it?
The probate process from a high level view is the process that takes place to determine what will happen to ones estate and other property when they die. Probate is said to have Latin roots that mean “something proved”, and the legal definition explains that it is the process to which one determines if the deceased persons Will is valid. Probate essentially has 2 different purposes; one is to make sure the Will is valid legally and that the administration of the estate is being carried out according to how the deceased wanted it to be. Second, is when the deceased did not leave a will and the court must identify how that person’s possessions and assets will be distributed. The second can be somewhat tricky and difficult to decide, also it is the most often disputed.
To explain the top 3 reasons a Will goes into probate we also must identify the parties that could possibly be involved within the probate process.
What Parties are Involved in the Probate Process?
We can start with the person who initially created the will and who’s assets are being disputed, this person is called the “testator”. The “beneficiary” is any persons who are named in the Will to receive the property of the testator. Next, the “executer” is the one responsible for administering the property to the beneficiaries and overall making sure the Will is being executed to the desire of the testator. Just a quick note, the testator is what that person that created the Will is called when they are living, after they pass they are then called the “decedent”.
Now that we have identified exactly what the probate process is and what parties will be involved, we can discuss the top 3 reasons a Will goes into probate.
Top 3 Reasons a Will Goes into Probate
The first reason we will touch on is subsequent families and second marriages. These second marriages, subsequent marriages and first marriages all have one thing in common, relation to the deceased. As you could imagine, these groups will often disagree on the terms of the Will and will dispute many items. Such as, the real estate itself in terms of who gets it or if it is sold, and the deceased persons possessions. In these situations, a probate attorney is your best bet to help you fight these disputes.
The second most common reason a Will goes to probate is subsequent revisions to the Will. The testator is able to alter the Will at anytime when they are still alive. This can create a lot of confusion because it must then be determined what changes were made last in order to identify who rightfully gets the assets of the Will. It is also taken into account when the amendments were made as to ensure they were made under the free will of the testator.
The third most common reason a will goes to probate is undue influence, duress, and coercion. This refers to the situation where a person’s decision making capacity is influenced by a third party. When this influence caused the testator to amend their Will for some reason, the possible beneficiaries are then able to dispute the validity of the Will. For example, if one of the family members was the testator’s main caregiver, the other family members might question the caregivers influence on the testator for the reason they amended the Will.
As mentioned before, there are many different ways a Will could go to probate, these are just the 3 most common seen today. Probate can be a very high tension environment between family and a probate attorney can help solve many of the issues that may arise while still being respectful to the members of said family. If you believe you need to go through probate, contact a probate attorney today to see how they can help.
Sources
https://www.hackardlaw.com/estate-litigation/probate-litigation/
