Estate planning and preparing a will is a gift to your family members and loved ones. After your death, your will is a guide for the court and your loved ones. Having a will makes the probate process faster, decreases probate court expenses, and fulfills your intentions for your property.
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After you pass away, your will comes to life. It will start the probate process and inform the probate court who you want to have your property and what property you want them to have. Your will is your legally enforceable voice to the court and your loved ones after your death.
Filing of Will
The first step of the probate process is for the personal representative to file the will and death certificate of the deceased person with the court. The court receives the will of the decedent, beginning the probate proceedings.
Your personal representative needs your will to start the probate process, so make sure they know where to find it. Keep your will in a safe place, a literal safe, for example, or a desk drawer or file cabinet. Wherever you choose to store your will, be certain that your personal representative knows where to look for it.
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Validation of Will
The court will validate your will, determining that it is yours and it meets your state’s legal requirements. A self-proving affidavit is often included in a will. A self-proving affidavit is a document signed by you and a notary stating that you are who you say you are. This affidavit is evidence that you are the testator named in your will.
A person with legal standing may challenge the will’s validity. There are a few reasons for challenging a will:
- Fraud. Fraud occurs when a person lies about something to the will-maker in order to gain something through the will.
- Forgery. A forgery is when the will being presented to the court, or the signature on the will, is fake.
- Undue Influence. Undue influence is when someone coerces the will-maker into including a provision in their will. An example of this is when the will-maker is a vulnerable person, and someone they rely on pressures them to include them in their will.
- Lack of Testamentary Capacity. When the will-maker is not of sound mind when they sign their will, meaning they were unable to understand the consequences of their will, they lack testamentary capacity. This could be due to intoxication, Alzheimer’s, dementia, or even insanity.
- Legally Inadequate. When a will does not meet the legal requirements for a valid will set forth by state law it is invalid. An example of this would be a failure to meet a state’s requirement of a signature on a will.
To ensure that the probate court validates your will and to protect your will from a challenge to its validity, you should make sure that your will is properly executed under your state’s laws. This means confirming your state’s requirements for the age of a will-maker, the number of witnesses required, and rules about who can witness your will.
Examination and Administration of Will
The court will examine your will to find who you’ve named to represent your estate throughout the probate proceedings. This person is the personal representative and will be officially appointed to their position by the court. Select someone you trust to serve as your personal representative. Often the personal representative is the surviving spouse, sibling, or other family member of the decedent.
Your estate administration follows the terms of your will. There are many types of assets that are distributed as part of the estate administration process:
- Bank accounts
- Retirement accounts
- Life insurance policies
- Real estate/real property
- Personal property
Without a will, probating an entire estate is time-consuming and expensive for surviving loved ones. Probate is faster and less expensive with a will. This is in part because a will includes named beneficiaries and property designations, meaning the will says who you want to receive your property and what property you want them to receive. If you die without a will, your assets are distributed by the laws of intestate succession, which is who state law says will inherit your property.
Recording of Will
Like many legal documents, wills are part of the public record, but only after probate. Prior to the probating of your will, your will is private. You can store it where you want. Because it is not recorded yet, it is only accessible to the people you make it accessible to. Your will becomes public record once you die, and your estate goes through probate.
Prepare Your Will Now
If you take the time to prepare your will now, your loved ones will be thankful to you after you’re gone. Loss is incredibly hard, and having to grapple with time-consuming and expensive court proceedings after the death of someone you love is a terrible addition to the grieving process. Your will is a gift to those you love.
You can prepare your will now using Trust & Will’s online will formation services.