5 Things to Know About Probate

At LNN PC, we often hear from clients who want to “avoid probate”. Probate* is not an inherently bad process to avoid. Here are the top 5 details to know:

1. Probate is the process of validating the Will and granting the named Executor his or her powers. The court wants to ensure that the Will is valid and the Executor is willing and able to act. Probate addresses those two concerns.

2. Speaking of Executor…the Executor does not automatically have the power to act through the Will. The Will must be submitted to the court so the named Executor can receive his or her “Letters of Probate” from the court. The letters allow the Executor to formally perform their duties. In short, until the Will goes through probate, the Executor has no power.

3. If the family and heirs agree, probate can be easy. Probate turns into a headache when there is disagreement regarding the validity of the Will. One way to avoid this is to have a recorded family meeting whereby the necessary parties (a) understand tha there is a Will and (b) are aware of its general instructions. With that, the Will- challenge is decreased. Challenges usually happen when there is secrecy or sudden changes that seem ‘odd’.

4. Probate takes time; how much time depends upon your court. Smaller counties that are not inundated with probate petitions tend to move more swiftly, especially if the estate is not complicated or challenged. If the decedent lived in a large county where the court tends to be overwhelmed with probate petitions, or is short-staffed, expect delays.

5. An Executor does not need an attorney to probate an estate, but an attorney can be helpful. An Executor is able to complete the probate petition and submit the necessary documents on their own. Courts offer assistance by providing checklists and often work with Executors who are not represented by an attorney. However, if you are willing to invest, in order to save time and mistakes, working with an experienced attorney means a professional completes the forms and handles the process from start to finish, as well as helps the Executor to perform his or her duties and formally close the estate. This is especially helpful for Executors who live far from the court.

**At LNN PC, we use the term ‘probate’ to refer to the process of submitting a valid Will to the Surrogate or Probate court. If there is no Will, then the process is similar, except assets pass according to state law and not a Will.

LNN PC can help your probate process in several ways: (1) draft a valid Will (2) help the Executor obtain their Letters of Probate, while the Executor administers the estate on their own (3) both secure the letters and administer the estate for the Executor or (4) administer the estate only after the Executor has secured the letters on their own.