Most people are surprised to discover that probate may be necessary whether or not the decedent has made a will. A will does not eliminate the succession requirement, rather, a will is the main mechanism used in the succession process. Probate is a court-supervised process for identifying and collecting a deceased person’s assets, paying the decedent’s debts, and distributing remaining assets to beneficiaries.

A circuit court judge oversees probate proceedings. The judge appoints the personal representative and issues “letters of administration,” also called simply “letters.” This document shows the world that the personal representative has the authority to act on behalf of the decedent’s estate. The judge also holds hearings when necessary and resolves all issues raised during the administration of the estate by entering written instructions called “orders.” The succession process is necessary to settle the affairs left by the deceased. Ensures that all of the decedent’s creditors, including the IRS, receive proper payment. The estate can easily cost 3% to 7% of the total value of the estate. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary.

If the deceased dies without leaving a will, he dies intestate. When someone dies intestate, the distribution will be made according to the order established by state statutes. The probate court will make sure the law is followed. If a decedent dies leaving a duly executed will, he is testated. The court will make sure the will is valid and distributions are made in accordance with it. However, it is important to remember that a will can be challenged. This can delay distribution for years and will be a huge expense to the decedent’s estate because attorney fees and court costs are paid out of it.

Many times when there is a large estate, family members or heirs may have conflicting interests. Interested parties with conflicting claims will then hire legal representation. The interested party filing the lawsuit will be the plaintiff and the personal representative (in his capacity as personal representative) will be the defendant in the lawsuit. Some of the more common objections are that the decedent lacked mental capacity at the time the will was executed; the decedent was coerced or was under undue influence; the will was falsified, or the will was not properly drawn, signed, or witnessed in accordance with the formal requirements of the state. Once litigation begins, the will and family affairs become public record for the world to see. In addition to the public embarrassment and expense, if the plaintiff wins, the wishes of the decedent are not carried out.

Although it can be expensive, the probate process does not have to be complicated. The best way to lessen or eliminate an unpleasant probate court experience is to plan ahead. However, planning ahead doesn’t mean going to the office supply store and getting a “fill in the blanks” will or downloading it from an unknown source. Remember that you must comply with the laws and requirements of your state. There are very specific requirements to properly executing a will, such as who can or should be a witness and where and when you and your witnesses can sign. The actual language used in the will may be fine, but the will can be challenged if you don’t follow the enforcement formalities. Also, certain family members may have rights granted by law. Minimize the chance of your will being contested, find an estate planning attorney. An experienced attorney will be able to draft a will that meets your needs and the laws of your state.