Before admitting a will to probate, and applying to the probate court for letters of authority to authorise an executor or personal representative to formally start the probate process, there are a number of tasks that the executor or personal representative must carry out. Before we look at these tasks, let’s start with an overview of what probate is.
Probate no longer simply means proving the validity of a last will and testament but rather has come to mean the entire administrative process involving the collecting of assets, payment of debts and the passing of a deceased person’s legal title to property to his or her beneficiaries. The person responsible for carrying out this administrative process is called an executor, legal representative or personal representative. He or she will also be responsible for admitting a will to probate.
Because a will is required for probate, one of the first tasks facing an executor will be to locate the will. Not only does the will specify how the deceased wished to distribute his or her estate but it should also confirm the name of the person that has been appointed as executor of the deceased’s estate. Once the last will is located, the next task will be to determine whether it is indeed a valid last will and testament on its face, ensuring for example that it has been signed by the testator and witnessed by the correct number of witnesses. Most states require that a last will and testament be witnessed by two witnesses (in Vermont, there must be three witnesses).
Assuming that the last will is validly executed, the next step will be to confirm that this is in fact the last will of the deceased, as generally only the last will has legal effect (new wills tend to revoke old wills in their entirety). This is why it’s important that a testator physically destroys any pre-existing wills and codicils when he or she makes a new will. At least, in that way, there can be no room for argument as to which will is in fact the testator’s last will.
Assuming that the last will appears in order, you will then need to determine whether probate is required and, if so, start the process of admitting the will to probate by applying for your letters of authority. In applying for probate, the probate court will also scrutinise the last will to make sure that it is valid. If the probate court accepts the will it will issue letters of authority to the executor, thereby admitting the will to probate and commenting the probate process. The letters of authority are evidence that the executor has been authorized to probate the estate of the deceased will maker.
How Can We Help You?
For more information on the process of admitting a will to probate and probating an estate, check out our book entitled How to Probate an Estate. It explores the process from the moment the deceased passes away right through to the distribution of assets. Items such as death certificates, autopsies, funeral planning and asset management are discussed at length. It will also show you how to initiate and close probate with ease, learn how to locate and manage estate assets, deal with creditors’ claims, taxes, and trusts, avoid the common mistakes made by many executors and much more….
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