Probate..., or Probate?

 

What exactly is Probate, and why is it important that you understand?

 

Probate actually has two meanings in the law.  First, probate refers to the process of submitting a Will to a court with jurisdiction and asking that court to determine that the Will is valid.  Second, probate refers to the process of administering the estate of a deceased person.

 

Probate of a Will:

 

Why do we probate a Will?

 

There are a few reasons to probate a Will.

 

First, the court has to determine whether the Will is valid.  Determining whether a Will is valid involves examining the Will and ensuring that it was properly drafted and properly executed.  A Will that has not been properly executed is invalid, and it may be disregarded, even if it was an accurate statement of a person’s wishes.

 

The laws of the various states vary widely regarding what makes a Will valid.  In some states, a person can create a holographic Will, which is a handwritten Will signed by the testator, but usually not witnessed or notarized.  While some states would recognize such a Will as a valid Will, other states, like New Mexico, do not.  However, some states, including New Mexico may recognize a holographic Will, if the Will was created in a state that recognized holographic Wills at the time that the Will was created.

 

Other states may impose different requirements on a Will, such as requiring that the signing of the Will be witnessed by two witnesses.  New Mexico is such a state.  Some states, however, impose restrictions on who can be a witness.  For example, some states require two people to witness the signing of a Will and require that neither of the witnesses be a beneficiary of the testator’s estate.  New Mexico does not impose that requirement, but there are reasons why it might still be a good idea to use impartial witnesses.

 

The technicality of what makes a Will validly executed is a big reason why Wills can be rejected in probate, and a good reason why you should contact an experienced attorney to assist you with your estate planning documents.

 

Another reason judges need to ensure that a Will is valid is that they need to ensure that the Will submitted to probate is the deceased person’s most recent Will, and that it has not been revoked.  Wills can be revoked in many ways, and people often invalidate their Wills by trying to add handwritten updates to their Wills instead of having a new Will or Codicil drafted.  Inadvertently revoking your Will can disrupt your entire estate plan.

 

Generally, the Will submitted to probate is the deceased person’s most recent Will.  However, it is not unheard of for one person to submit one Will to probate, and another person to submit a different Will to probate.  Generally speaking, executing a new Will revokes any previous Wills.  Judges need to be certain that the document they receive is a true and correct statement of the deceased person’s wishes, as those wishes were expressed most recently.

 

Probate as the administration of a deceased person’s estate:

 

Probate also refers to the process of administering an estate.  Administration of an estate involves gathering and inventorying all of the assets of a deceased person, paying any valid claims against the estate, paying any outstanding taxes or estate taxes due, and distributing the remaining assets to the beneficiaries under a Will or under the laws of intestate succession. 

 

Probate, as the process of administering an estate, does not require a valid Will.  When a person dies intestate (without a Will), the laws of the states designate who is entitled to inherit from the deceased.  However, people often want more control over who receives their property after death, which is a big advantage of having a Will, as I discussed previously, here.

 

Whether you are probating a Will, or administering an estate through the probate process, having the experience and guidance of an experienced attorney is very helpful. 

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