There is a Will! Application to Probate

Posted by Winifred "Wini" Cannon | Mar 31, 2021 | 0 Comments

So your loved one did have a will, thank God. And so what do you do? Do you need to do anything further? Of course, you do. Having a will is the first step, but having the will without having the will probated is the step that you have to take.

The Second Step

So step one, decedent has a will. Step two, you look at the will. You read the will and you see who was appointed under the will to be the executor. And if that is you, then you would basically take that will to your attorney and you would say, "I want to have this will probated." The reason why the will has to be probated is to see whether it is a valid will.

The Validity of the Will

Now the validity is based on whether or not the testator, the person making the will, was of sound mind and had the capacity to make a will. To have the capacity to make the will is basically contingent on is the person 18 years old or older and the soundness of mind is based on the subscribing witnesses testimony or what they have incorporated into the will document. So the subscribing witnesses, or in other words, for your will to be valid, it has to be witnessed by three people that they're going to give the testimony in their statement that you made this well and that the testator made the will in their presence and the presence of each other. And that they find that the person was of sound mind and had the capacity that's the bar.

So you got three people to come over and sign that statement. Then that makes your will valid.

A Self Proving Will

But we could go a step further and in the will, if the will has a clause, a self-proving will, then self proving one is where not only have the witnesses given their statement, but they've also basically have their signatures notarized. So we take the will, we file this application to have the will probated and we're asked to the court for letters testamentary in this one as well.

The Objective of Validating the Will

So the objective is to have the will validated, but remember part two of th+is application is to see whether or not you should be appointed and whether or not the will provided for an independent administration. If the language of the will does not say this will should be probated as under an independent administration then what the intended person who's applying to be the executor must do is get the consent of the people who are the beneficiaries of the decision to agree that: A, they want the person applying to be the executor and, B, that they all agree unanimously that the administration would be by an independent administration.

So you have a will, but you got to take that will to court to have it probated so that you can ultimately get those letters testamentary so that you can do anything and everything that the decedent would have the power to do to wrap up your loved one's affairs.

About the Author

Winifred "Wini" Cannon

Winifred “Wini” Cannon knows how business owners may be impacted when retirement, incapacity, or death occurs without a good plan in place. One example that is very common is in the instance where one partner dies leaving the other trying to stay in business complicated by the...

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