When does a probate apply?

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When does a probate apply?

What Is Probate

Probate is the judicial process whereby the court of law proves a will. The court accepts the Will as a valid public document that is the true last testament of the deceased. The intestacy laws settle the estate in the state of residence of the dead at the time of death in the absence of a legal will.

Legal Process Of Probate

The legal process of managing a decedent’s estate, resolving any claims, and distributing the decedent’s property by a will begins with the granting of probate. A probate court decides the legal validity of a testator’s (deceased people) will and grants its approval, also known as granting probate, to the executor. Once there is probation of the Will, it becomes a binding legal document that the executor may use to their advantage in court, if necessary. Furthermore, probate officially names the executor (or personal representative), typically named in the Will. Finally, it grants them the authority to distribute the testator’s assets by the terms of the Will. However, one may contest the Will during the probate procedure.

Literal Meaning of Probate

The Latin verb probare, which means to try, test, prove, or examine, is the direct source of the English word “probate,” specifically from the past participle nominative neuter probatum, “having been proved.” In the past, under the transcription of the Will, scribes of the specific probate court would write a paragraph in Latin with a set format that would begin, for instance, with Viro (approver’s name) legum doctor curiae prerogative Cantuariensis probatum Londini fruit huiusmodi Testamentum (“A testament of such a kind was proved at London in the presence of the venerable man ….. doctor of law at the Prerogative Court of Canterbury…”). The definition of “the official proving of a will”goes back to 1463.

Will and Probate

Typically, a will becomes effective upon passing the testator or testatrix (person making the Will). Nevertheless, the property transfer can occasionally occur during the testator’s lifetime. The testator’s signature and the attesting witnesses serve as evidence of Will’s legitimacy, but there is an increase in Will’s credibility if it has undergone probate.

To put it another way, probate is a legal procedure that enables the decedent to correctly transfer his estate among his heirs and other chosen beneficiaries. It also makes provisions for paying back the creditors’ debt.

Following the testator’s death, one may file the petition for probate. The full will-probate procedure

Here are some specific examples of typical chores an executor and beneficiaries might receive help with from a probate lawyer:

  • obtaining life insurance policy proceeds
  • estate asset identification and protection
  • Getting valuations for the deceased’s real estate
  • helping with the payment of debts and bills
  • preparing and submitting all paperwork necessary for a probate court to figure out whether one owes any estate or inheritance, then ensuring proper payment of bills.
  • resolving tax problems
  • Taking care of the estate’s bank account
  • transferring property owned by the deceased to the designated recipients
  • distributing assets to beneficiaries after the settlement of the debt.

The probate lawyer will often start by proving the Will to ensure it is legal if the decedent left a will. The attorney will examine the document to ensure the credibility of the Will. A court invalidates a will when,

  • The testator (the person who made the Will) did not sign it in line with state rules, establishing criteria for witnesses.
  • When preparing the Will, the testator had limited mental capacity.
  • There was the application of threat in making the Will.
  • There is dishonesty.

The Requirement of Probate if there is a Will?

No, it is not required to probate a will. There are several situations where doing so is unnecessary, though state laws may vary. When a property is held in joint names with a person’s children, spouse, or another person, it automatically goes to the surviving owners by operation of law. No will needs to be probated to distribute it.

However, when the current Will has difficulty, a probate is necessary. Or the beneficiaries listed in the probate are predeceased by the testator. The Will might not have named a beneficiary if the deceased testator was the only estate owner.


Probate examines a decedent’s assets and identifies inheritors. The validity, authenticity, and legality of a will are generally the main topics of probate proceedings. One can start the probate process with or without a will. Even when there is a will, a process is typically necessary when a deceased person’s remains are highly valuable. By adopting an easily certified will or employing forms of investment that do not require probate, people can avoid the expensive probate costs and complications.

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