What is probate?
Probate is a legal process of through which the court decides if a will is valid or not. A will is written by the testator when he is still alive. The testator is the deceased person. When the testator dies, his will goes through the probate process. This is relevant as the court uses it to determine if the will presented to the court is the last will and testament of the will. If the court finds irregularities, it has the right to declare the will invalid and the testator’s assets cannot be distributed based on the instructions of that will.
What happens if you don’t probate a will?
The only legal way through which assets and titles can be passed from dead persons to their living heirs or beneficiaries is probate. So, not probating a will as at when due or at all could have unpleasant consequences. These effects will not be felt by you alone, it will also affect the assets as they will be tied down.
Without probate, the assets of the deceased person are still his even after his death, this makes it impossible for a loved one to access these so they can’t be used, sold, given to charity or shared.
It also has effect on creditors to the estate because without the process of probate, creditors cannot be settled. Creditors to the estate are supposed to be settled with funds from the estate. Lingering taxes and bills of the estate will remain unpaid.
Importance of probate
As much as most people try to avoid probate for certain reasons, it still has importance and usefulness.
It helps to ascertain the validity of a will; the probate process helps to investigate the legitimacy of a will. This helps to avoid falsifying a will by dubious relatives.
Also, probate is very useful and necessary for individuals with large and significant amount of assets and it is even more needed if there are those who will likely contest the individual’s will.
The process of probate
- Filing a petition to commence Probate: The first thing to do as an executor is to file a request to the county the deceased lived at the time of their death. Along the petition, you are required to file a death certificate and a Will if there is one. The court goes ahead to set up a hearing to sanction the executor, if approved, a probate case will be opened by the court then you can now represent the estate.
- Sending notice: The executor is required to send a notice of probate to all the beneficiaries of the estate.
- Taking to account all assets: You are required to put together inventory of all assets that are subject to probate and present them to the court
- Settling bills and creditors: Here, you go through all records and settle every outstanding debt owed by the estate such as paychecks and rents.
- Distribution of the remaining assets: After settling all creditors, paying all outstanding bills and taxes, the remaining assets will now be distributed to the rightful heirs.
- Closing the estate: After distribution of everything, you will present and submit receipts and records of everything to the court; you will then ask that the court close the estate and that you be released from the executor’s role
Question: who is supposed to initiate the process of probate?
Answer: the probate process is supposed to be initiated by the executor of the estate.
Question: what could be the reason for the executor not probating a will?
Answer: it could be any possible reason, often it could be due to personal selfish reason, probably the will is not in favor of the executor, and he won’t show the court the will.
Question: is it a criminal offense not to probate a will?
Answer: yes it is a criminal offense if it discovered that the executor deliberately refused to probate a will due to personal gains. It could even lead to a jail time and he would be held accountable for every inconvenience it must have caused. If debt were accumulated, he will be liable to pay and if the heirs of the estate suffer any financial crises, the executor will be liable for it.
Importance of an attorney
The probate process could be a really difficult and stressful one without the guardians of a probate attorney. As an executor, you need the assistance of an attorney to be able to easily carry out your duties. Our attorneys are always available for consult and hire. Reach out to us today.