Jun 22, 2022
This week, I’m continuing my discussion about the probate process with Judge Edward C. Burt Jr. (aka Ned). We’ll dive into what happens if someone dies without a will, the specifics of the full probate process, establishing the authenticity of wills, and Ned’s final tips for making probate as simple as possible.
You will want to hear this episode if you are interested in...
- What happens if I die without a will? [3:36]
- Diving deeper into the probate process [6:23]
- How do I file a will? [9:57]
- Determining the authenticity of multiple wills [12:42]
- Ned’s final tips for simplifying the probate process [14:30]
A matter of time
If you die without a will, it is known as dying intestate. This means the probate court will have to decide how your assets should be divided up. The process of doing so can be burdensome and expensive, which is why having a last will and testament is highly recommended. Assuming there is a will, the average probate process can take six to nine months. A will should be filed within 30 days of the deceased’s passing. Once a notice has been published in the newspaper, anyone has 150 days to file a claim against the estate, and fiduciaries have 60 days to respond to any claim. One of the final steps is filing an estate tax return within six months of the initial passing, but Ned suggests taking care of this as soon as possible because there are no extensions allowed and penalties for filing late.
While probate can be a lengthy process, there is a lot you can do while it’s still ongoing. If the claims process has concluded and no claims have been filed against the estate, executors are able to request a distribution from the court. You can also sell real estate during the probate process. Most wills give executors that right without probate court approval. Ned recommends including this in your will as a huge probate time saver. If the person who passes away is not the sole owner of any real estate and has less than $40,000 in assets, they are eligible for a streamlined probate process. All it takes is a few forms filed through the probate court, which Ned believes most people can do without professional help.
Establishing authenticity
Many people believe their last will and testament should be filed with the probate court upon creation, but this is a common misconception. Original copies of the Will are filed when a person passes away. Lawyers used to hold onto the original copy of a will, but that is rarely the case now because if they misplace it they would be liable for malpractice. If you lose an original will, a conformed copy can be filed with the probate court and may need its witnesses to corroborate the authenticity of the document.
In situations where multiple wills are filed for the same person, determining the authenticity of the deceased’s final wishes can be tricky. Testimony is taken from both the witnesses who signed the will and the attorney who facilitated the creation of it to try and sort out the discrepancy. Interested parties can submit any evidence necessary, including professional testimony from experts, to try and prove things like diminished capacity in cases where a secondary will is contested. Listen to this episode for more information on the probate process!