Probate Glossary & Frequently Asked Questions

When  a person dies, their last will and testament (assuming they prepared  one in advance) is handled and their wishes for the distribution of  their personal property implemented through a process called probate.  Probate simply means the procedure by which their last written  directives are legally certified as the final statement of their wishes  regarding their worldly possessions (including any property or  properties they may have owned).  It also confirms the appointment of a  person or entity the deceased person selected to administer their  estate.  The term probate is also frequently used to refer to the entire  process of “probating” an estate.  In this usage, it refers to the  entire process that gathers all available assets, pays any outstanding  debts, taxes, administrative expenses and then finally makes the  specified distribution of remaining assets to those persons or entities  designated by the will.

The personal representative (also known as the executor or executrix)  who is named in the will is legally in charge of this process and is  responsible for handling the orderly method for administration of the  estate as set forth by the probate laws and procedures of their state.  The executor is typically held accountable for their actions and  decisions by the heirs and other beneficiaries and in some cases may be  formally supervised by a probate court. If a will does not exist or a  personal representative is not designated in the will, the court will  appoint one (assuming there is personal property to distribute).

The personal representative is often entitled by law to a reasonable fee or commission for their services.

Probate law generally encourages or provides for partial  distributions of funds during the period of administration and assets  are often distributed “in kind” rather than sold during this period. Tax  laws generally look to the personal representative as being responsible  for making death tax filings and other tax payments from the  outstanding assets of the deceased.  Therefore, choosing an  executor/executrix/personal representative is an important decision.

The basic job of administration and accounting for assets must be  done whether the estate is handled by a personal representative as part  of the probate process or if probate is avoided. In the recent past,  lawyers and other professionals have advocated the use of probate  avoidance techniques (such as revocable trusts, etc.) in states where  the probate process has been seen to be too slow and overly expensive. In  recent years, many states have simplified or streamlined their probate  processes and, in such states, there is now less reason to employ  probate avoidance techniques.

A  probate court, which is sometimes referred to as a surrogate court, is a  specialized court and legal process that deals with matters pertaining  to the probate and the administration of the estate of deceased persons.

These specialized courts ascertain and oversee that proper  administration and distribution of the assets of a decedent (one who has  died), determine and certify the validity of wills, enforce the  provisions of a valid will (by issuing the grant of probate), prevent  improper action or malfeasance by executors and administrators of  estates, and provide for the equitable distribution of the assets of  persons who die intestate (without a valid will). In such cases, the  court may appoint a personal representative to administer the matters  pertaining to an estate.

If there are disputes regarding an estate, the probate court  ultimately decides who is to receive the property of a deceased person.  In a case of an intestacy, the court determines who is to receive the  deceased’s property under the laws it is governed by. The probate court  will oversee the process of distributing the deceased’s assets to the  proper beneficiaries. In some states or jurisdictions, probate courts  are also referred to as orphans’ courts, superior court, courts of  ordinary or other names. Not all jurisdictions have specific probate  courts and, in some locales, probate matters are handled by a chancery  court or another court of equity.

The probate court can be petitioned by parties that are interested in  or who have claims against an estate, such as when a beneficiary feels  that an estate is being mishandled or someone to whom the decedent owed  money. The court has the authority to demand that an executor, executrix  or personal representative give an account of their actions on behalf  of an estate.

The  Personal Representative, also known as the Executor (if the personal  representative is a male) or Executrix (if the personal representative  is a female) is the person who is designated by the will of the person  who has died to administer their estate and handle the distribution of  its assets to those entities designated by the provisions of the will.  Unless there is some valid objection or the person designated refuses to  serve in that capacity, the probate judge will appoint the person who  is named in the will to serve as the personal representative.

It is the duty of the personal representative to ensure that the  deceased person’s wishes, as expressed in the will, are carried out.  Some of the tasks that may be required to be performed by the personal  representative include determining and protecting the specific assets of  the estate; obtaining information (name and location) in regard to all  beneficiaries named in the will and any other potential heirs;  collecting and arranging for payment of the debts (if any) of the  estate; approving or contesting any claims made by creditors; making  sure estate taxes are calculated and paid, filing any required forms,  and assisting the attorney for the estate (often selected by the  personal representative if not specified in the will).

Joint tenants (or tenancy) with the right of survivorship (JTWROS)  is a type of ownership of real property or financial assets in which  all joint owners have equal portions of ownership that are immediately  re-allocated to remaining owners if one or more owners dies. 

Testate refers to a person who has died and left a “Last Will and Testament”  that specifies their wishes pertaining to the distribution of the assets  of their estate following their death. In this case, the estate will be  distributed according to the provisions of the will.  Intestate refers to a person who has died and did not leave a “Last Will and  Testament.” In this case, the administration of the estate will be  handled by the court of jurisdiction and according to the laws of the  state. 

 A codicil is a document, attachment or rider that is added to an  existing will that modifies or supersedes existing provisions or adds  new provisions. This is done as an alternative to redrawing the entire  will and is often done to change a beneficiary or assign disposition of a  particular property or define the rights of a specific beneficiary. 

While  the process can vary from state to state and is often subject to  outside factors that can certainly change it, the list below represents a  VERY simplified step-by-step description of the process:

• An original (signed and executed) copy of the will is delivered to  the local probate court or whatever court supervises probates in that  locale.
• A notice of the Petition for Probate is published in a local  newspaper. This is usually a requirement prior to the formal appointment  and/or certification of the personal representative (executor /  executrix) who was named in the will, assuming a will exists (legally  referred to as “testate”), or the court-appointed administrator if there  is no will (referred to as “intestate”).
• After the certification or appointment of the personal  representative has been made official, they then file their formal  petition with the court to probate the estate.
• Following that step and generally for a legally specified period of  time (four months is typical) from the date of the public notification  of the petition for probate, creditors against the estate are allowed to  file their claims. This includes any previously unpaid debts, other  liens or judgments, debts resulting from medical care, funeral expenses,  outstanding taxes, and other encumbrances.
• During this same period, the personal representative will be working  to identify, gather and secure the assets of the estate in such a  manner as to be able to ultimately distribute them in accordance with  the will or court directives. To accomplish this, the personal  representative will also need to locate and access all bank and other  types of security accounts; determine any of the remaining debts owed by  the decedent that require settlement; determine any real property(s)  owned by the decedent and secure the titles to these and any other  assets that will ultimately need to be disposed of.
• It’s also the responsibility of the personal representative to  maintain these assets safely, properly and in good condition during  their period of stewardship as well as collecting any income (rents,  residuals, interest payments, etc.) that are due to the Estate. To do  so, the representative must be aware of and maintain proper insurance  coverage; protecting the assets from theft or damage, etc.
• The personal representative may also (if permitted or desired)  liquidate some of the hard assets, such as cars, real estate, etc. This  is often done to provide the cash required to compensate creditors.
• When the formal claims period has expired and all assets have been  collected; property that needed to be sold has been sold; and assuming  no problems have arisen, such as a contesting of the will by any of the  heirs or other contested claims against the estate, the personal  representative will usually file their final petition with the probate  court to allow a complete distribution of all remaining assets to the  heirs and beneficiaries. This final petition includes a detailed  accounting to the court explaining all of the expenses incurred, funds  and assets received and disbursed, how any assets were invested or  otherwise used, and the proposed final plan for final asset  distribution.
• Assuming the court approves this petition, the personal  representative then distributes the assets as instructed in the will and  detailed by the approved petition, and/or as required by law or the  courts if there was no will.

The  duration of the probate process is subject to lots of different  variables, but a general rule of thumb is approximately six months.  However, you should be aware that it can and frequently does takes far  longer. Some of the matters that can delay the completion of the process  (among others) can include:

• Problems in locating the heirs and beneficiaries
• A contest of the will (disputing the validity of the document) by the heirs or beneficiaries
• Claims or liens against the estate that remain unsettled
• Real estate or other property that cannot be sold for some reason
• Failure to properly notify one or more creditors during the claim period
• Dissatisfaction regarding the actions of the personal representative by the heirs or beneficiaries

The complexity of the task and this myriad of possible delaying  factors make it all the more imperative that a well-organized and  meticulous personal representative be selected who can effectively  manage the process and reduce the chances of complications and delays.

There are many reasons for probate, but some of the most important are:

• Transferring the legal title/ownership of the decedent’s property  and assets to the heirs and/or beneficiaries. Generally, if there is no  property to transfer, there is usually no need for probate.
• The collection of any taxes due to various taxing authorities that  may be owed by the decedent or his/her estate at the time of death or  taxes that become due when a property is transferred.
• As stated above, probate also provides a legally mandated deadline  for creditors to file claims against the estate. This prevents old or  unpaid creditors from future claims against the heirs or beneficiaries.
• If the deceased owned real estate in his or her own name, no one  could properly accept title to that property nor would a bank give a  mortgage to a new buyer mortgage unless the estate went through probate  and a “clear title” could be given the new buyer.
• Generally, no one would enter into any other transactions involving  the deceased’s property until the will has been filed for probate and  someone has been legally appointed to act for the estate.
• Finally, it provides a legal method for the actual physical  distribution of the remainder of the estate’s property to the heirs and  beneficiaries.

Not  necessarily, however, some legal method must be employed to transfer  the legal title and ownership of the deceased’s property into the name  of the beneficiaries and/or heirs. Many states also allow some types of  property to pass to certain beneficiaries free of probate or via a  simplified (express or fast-track) probate procedure.

Usually, real and personal property owned under a structure called  “joint tenancy with rights of survivorship” passes to the surviving  co-owner(s) without a requirement for probate.

Other types of benefits, such as a life insurance policy or an  annuity that is payable directly to a named beneficiary can often be  tendered without the requirement for probate. Also, IRAs, Keoghs, and  401(k) accounts usually transfer to the persons named therein as heirs  or beneficiaries automatically without probate. Bank accounts that are  set up as “payable-on-death” accounts; ones that are being “held in  trust for” specific heirs or beneficiaries (also called a “Totten  Trust”) also pass the proceeds directly to the named heirs or  beneficiaries without probate.

A “living trust” that holds title to a property held  in trust also passes that property to the heirs or beneficiaries  without probate. Such a trust is a legal entity which survives after the  death of the person who created it.

 The cost of probate may be set by state law or by practice and custom in your community.

When all the costs are added up – and the costs may include appraisal  costs, executor’s fees, court costs, costs for a type of insurance  policy known as a “surety bond”, plus legal and accounting fees, probate  can easily cost from 3% to 7% of the total estate value, and more. If  there is a “Will contest” all bets are off.

Possibly. In some states, there are processes often referred to as  “simplified procedures” that are used for estates whose value is below  certain financial thresholds. The limits can be as small as a few  thousand dollars or as much as a hundred thousand dollars. It depends on  the court of jurisdiction. This is certainly a matter to consult with  an attorney about, but if there is real estate involved or there are  debts against the estate, regardless of the size of the estate, the full  probate process may be required or advisable. 

Typically,  the person named as the deceased’s Personal Representative (a more  formal term is “Executor” or “Executrix”) goes to an attorney  experienced in probate matters, who then prepares a “Petition” for the  court and takes it, along with the Will, and files it with the probate  court.

The lawyer for the person seeking to have the Will admitted to  probate typically must notify all those who would have legally been  entitled to receive property from the deceased if the deceased died  without a Will, plus all those named in the will, and give them an  opportunity to file a formal objection to admitting the will to probate.

A hearing on the probate petition is typically scheduled several  weeks to months after the matter is filed. Depending on the state, and  sometimes who the named beneficiaries are, how long before the death the  Will was signed, whether the Will was prepared by an attorney, who  supervised the “execution” of the Will, and/or whether the Will was  executed with certain affidavits, it may be necessary to bring in the  persons who witnessed the deceased’s signature on the Will.

If no objections are received, and everything seems in order, the  court approves the petition, appoints the Personal representative,  orders that taxes and creditors be paid, and requires the Personal  Representative to file reports with the court to assure all the  deceased’s property is accounted for and distributed in accordance with  the terms and conditions of the Will.

The  appropriate court in the State and County where the deceased  permanently resided at the time of his or her death is usually the court  where the probate is processed. A court that handles issues such as  these can often be referred to my several different names. For  example, in the state of New York, the court that handles probate is  called the Surrogate’s Court, while, in the state of California, it is  called Superior Court, Probate Division. However, it’s most common for  it to be referred to simply as “probate court”.

While  there is usually no legal requirement to use a probate lawyer, probate  is a rather formalistic procedure. One minor omission, one failure to  send Great Aunt Maggie a copy of the petition, or a missed deadline, can  cause everything to come to a grinding halt or expose everyone to  liability.

The death of a family member or friend sometimes tends to bring out  the very worst in some people. Experience shows that even in close  families there is a tendency to get overly emotional about relatively  trivial matters at the time of a loved one’s death, such as who gets the  iron frying pan and who gets the kettle. Such minor matters or any  delays or inconveniences can be upsetting, pose issues of fairness, and  create unfounded suspicion among family members. Thus, it generally is a  very good idea to “let a lawyer do it”.

Usually,  the laws of the state in which the deceased was last a permanent  resident prevail regarding governance of probate issues – covering all  of the deceased’s personal property, wherever it was located, and all  the deceased’s real property located within the state. Therefore,  probate almost always filed in the last state where the deceased person  lived.

If the decedent owned out-of-state real property, the laws of the  other state can govern (or certainly affect) who inherits it if there is  no will. If a will exists and it has been filed for probate in the  state of most recent residence of the deceased, it usually must be  submitted to probate in the other state(s) of jurisdiction in which the  deceased owned real property. That additional probate filing is formally  referred to as “ancillary probate”. Some states require the appointment  of a personal representative who is a local resident or the state to  administer any in-state property.

If there is no Will, probate is usually required in each state where  the real property is situated, in addition to the home state and each  individual state can impose it own methodology that controls the  distribution of assets. As an example, in one state, the real estate  might go only to the spouse. In another state, it might be equally  divided between a spouse and each of his or her children. In still  another, half of the assets might go to a spouse and the remainder  divided equally between the children. This is one of the  reasons a will is so important to properly express the wishes of the  deceased and prevent family struggles and quarrels following a death.

If  there is a will, the Personal Representative (sometimes referred to as  the “executor” or “executrix”) is usually responsible.  If there is no  will, an “administrator” is appointed by the court as part of the  probate proceeding and that person has the responsibility for managing  the estate through the proceeding, subject to established probate rules  and procedures.

In many states, the probate court has a considerable amount of  control over the activities of the Personal Representative and requires  that she or he obtain prior permission of the court before certain  actions, such as the sale of real estate or business interests owned by the estate, may take place.

The main tasks of a Personal Representative are to:

1. determine if there are any probate assets;
2. identify, gather, and inventory the assets of the deceased;
3. receive payments due the estate, including interest, dividends, and  other income (e.g., unpaid salary, vacation pay, and other company  benefits);
4. set up a checking account for the estate;
5. figure out who is going to get what and how much under the Will (if  there is no Will, the state’s “interstate succession laws” apply);
6. value or appraise the estate’s assets;
7. give legal notice to potential creditors (the procedure and deadlines for creditors to file claims vary from state-to-state);
8. investigate the validity of all claims against the estate;
9. pay funeral bills, outstanding debts, and valid claims;
10. pay the expenses of administrating the estate;
11. handle various paperwork, such as discontinuing utilities and charge  cards, and notifying Social Security, Civil Service, and Veterans  Administration of the death;
12. file and pay income and estate taxes;
13. distribute the remaining property in accordance with the instructions provided in the deceased’s Will; and
14. close probate.

No.  It is always your option to serve or decline. Even if you agree to  serve you can resign later. If you do quit before the completion of  probate, you may be required to provide an “accounting” for the period  you served. If you decline to serve (or accept and resign later) any  alternate named in the will is typically appointed by the court. If no  alternate representative is named in the will or the named alternate  dies or is unwilling to serve (or, of course, if a person dies without a  will, the probate court will appoint someone to serve as the personal representative.

It  is not a requirement, but usually they are compensated. Certainly, all  personal expenses they incur in the management and process of settling  the estate must be paid for. Typically, a personal representative earns a  fee of +/- 2% of the total value of the estate for their work. This can  be mandated by the courts or by law in some states and varies  moderately from state to state. Generally, this percentage diminishes as  a percentage as the size of the estate increases.

All funds paid to the personal representative are subject to approval  by the probate court. Additional fees may be allowed by the court in  cases of unusual difficulty or extraordinary circumstances. On the other  hand, if a personal representative does not perform their duties in an  orderly or timely manner, the court may reduce or deny compensation and  the Personal Representative may be held responsible for any damages  caused.

If a person is both the sole beneficiary of the estate, and the  estate is not subject to Federal Estate Tax, it usually does not make  sense to take any fees as all fee income is subject to income tax. (The money a beneficiary receives from the estate is income tax-free.)

An  executor or administrator who is derelict in his or her duty is  personally liable for damages caused in the administration of the  estate.

Liability may arise from improperly managing the assets of the  estate, failing to collect claims and sums of money due to the estate,  overpaying claimants, selling an asset without the authority to do so,  or at an inappropriate price, neglecting to file tax returns on time,  distributing property to the wrong beneficiaries, etc.

This means that the Personal Representative might wind up paying for the loss out of his or her own pocket.

If  someone files an objection to the Will or produces another Will, what  is known as a “Will contest” has begun. While Will contests are not that  rare, and while few people actually win one, they can be  extraordinarily costly and create incredible delays.

It’s also important to know that the requirements for contesting a  will require a person to have “standing” to mount a contest.  Even  though you feel your next-door neighbor’s children ignored her and  treated her badly, that does not give you the right to contest her will.   If a person has proper standing to contest a will (ex: a child who was  cut out of the will by an angry parent, or even by a kindly parent who  felt that the local charity, not his children, should get his assets)  that person would have standing to bring a “will contest”. If a will  gives one sibling 2/3rds of a parent’s estate and the other 1/3rd, the  one receiving less has standing to bring a will contest. Similarly, if a  later will is less favorable to someone than an earlier will, or no  will at all, that person has standing. A will contest sometimes is  launched to have a different person, bank or trust company serve as Personal Representative for the estate, or as a trustee of Trusts created by the will.

Most  of the challenges to invalidate Wills are by potential heirs or  beneficiaries who got little or nothing. Questions on the validity of a  Will must be filed in probate court within a certain number of days  after receiving notice of the death or petition to admit the Will to  probate.

The typical objections and unhappiness is not one of them are:

1. the Will was not properly drawn, signed or witnessed, according to the state’s formal requirements;
2. the decedent lacked mental capacity at the time the Will was executed;
3. there was fraud, force or undue influence; or
4. the Will was a forgery.

If the Will is held invalid, the probate court may invalidate all  provisions or only the challenged portion. If the entire Will is held  invalid, generally the proceeds are distributed under the laws of  intestacy of the probating state.

If there is even the possibility of a will contest, an experienced probate lawyer is a must.

A  “contest” is usually mounted by the filing of the necessary documents  with the probate court by an heir, prospective heir or another  beneficiary. Each state has different time limits that control the  window for filing. To successfully challenge a will, there must be  sufficient evidence that the will was not created properly. Sour grapes  or being upset that a person didn’t receive what they felt they had  coming are not sufficient grounds for contesting a will. Typically, only  certain factors are mandated by law to be contestable. These might  encompass the incapacity or incompetence of the decedent at the time the  will was prepared, fraudulent intent on the part of some parties to the  will or undue influence or duress perpetrated on the decedent.

If  a person dies without a Will (known as dying “intestate”), the probate  court appoints a Personal Representative frequently called an  “Administrator” to receive all claims against the estate, pay creditors,  and then distribute all remaining property in accordance with the laws  of the state.

The major difference between dying testate and dying intestate is  that without a valid Will an intestate estate is distributed to  beneficiaries in accordance with the distribution plan established by  state law; a testate estate is distributed in accordance with the  instructions provided by the decedent in his/her Will.

Missing  Wills raises all sorts of interesting legal issues which often turn on  the specific facts and circumstances, and the law of the state in which  the deceased resided.

The Will may be missing because the deceased intentionally revoked  it, in which case, depending on state law, an earlier Will or the  state’s rules on intestate succession would determine who gets the  deceased’s estate.

Alternatively, the Will may be missing because it can be proven the  Will was stored in a bank vault that was destroyed in an explosion and  fire. In that case, the probate court may accept a photocopy of the Will  (or the lawyer’s draft or computer file), together with evidence that  the deceased duly signed the original.

The  first place to check is with the probate court in the County of the  State where the deceased lived. In almost every case the Will, if filed,  will be available to the public.

Anyone can get to see it, and for a modest fee, obtain a copy. If you  are far away, a local lawyer or legal service bureau often can arrange  to do a search and get a copy for you, at a relatively modest fee.

The fact that a person died — even if he or she “owned” substantial  assets — does not mean that he or she had a will, or that the will was  duly filed with the Court. In fact, if the deceased held property  exclusively through a Living Trust or a joint ownership arrangement,  there may not have been a need to file a will, because the Trust did not  “die” with the individual.  Also, with certain forms of joint  ownership, the property usually passes to the other joint owners automatically.

One  approach to reduce or eliminate the need for probate is through the use  of a Living Trust that holds legal title to some or all of your  property at the time of your death. The Trust is a legal entity which  survives you after your death.

Creditors  are notified of the death as part of the probate process. This  notification process can vary from state-to-state and can range from a  letter to each creditor to a blanket notice to all creditors published  in the local newspaper. Once this filing or notification has occurred,  creditors have a fixed period of time (defined by the court of  jurisdiction) to to file any claims against the estate either by  notifying the personal representative or, in some states, notifying the  probate court. If the claim is approved by the personal representative,  the bill is usually paid out of the estate. However, if the personal  representative rejects a claim, the creditor must sue the estate for  payment.

If the estate does not have sufficient funds to pay the lawful debts  to the creditors, the determination of who receives payment and in what  order is usually a matter of law. Also, the personal representative may  be required to sell some or all of the decedent’s property to satisfy  the claims of the creditors.

Generally  not. Just as you “can’t take it with you” you just can’t make others  responsible for your general debts, at least without their consent.  (Otherwise a person could run up lots of debts, name his worst enemy as  his beneficiary, and saddle his enemy with those debts at his or her  death.)

Unless the deceased had gifted away his or her assets to someone  shortly before dying, or otherwise acted in concert with them to defraud  his or her creditors, beneficiaries should not have any liability to  the deceased’s creditors just because they are beneficiaries. Of course,  the Estate may not have anything left for them, but the beneficiaries  would not be in the hole.

Of course, if the children or beneficiaries took any property or  benefits from the deceased or the estate or had assumed liability for  care given the deceased, or guaranteed payment, they could be held  liable for some or all of the deceased’s debts separately, not because  they are relatives or beneficiaries.

For federal and state tax purposes, death triggers two events:

1. It ends the decedent’s last tax year for purposes of filing an income tax return, and,
2. It establishes a new, separate entity for tax purposes, the “estate.”

For Federal tax purposes, it may be necessary to complete and file  one or more of the following, depending on the decedent’s income, the  size of the estate, and the income of the estate:

1. Final Form 1040 Federal Income Tax return.
2. Form 1041 Federal Fiduciary Income Tax returns for the estate.
3. Form 709 Federal Gift Tax return(s).
4. Form 706 Federal Estate Tax return.

For state purposes, an executor must file the appropriate state  income tax return (assuming the decedent was required to do so while  living) and any state income tax returns during the probate period, plus  possible estate tax, inheritance tax and gift tax returns. (In many  states, gift, estate, and inheritance taxes have been eliminated for  most small and medium-sized estates.) The requirements for filing and  payment vary widely from state-to-state.

Other taxes require the attention of the personal representative in  the probate process, such as local real estate and personal property  taxes, business taxes, and any special state taxes.

The Personal Representative should also be alert to the possibility of issues arising from tax years prior to the decedent’s death.

Of  course. The only real requirement is that the person making the will be  competent to make the change. In the movies, you have probably heard  this stated as “being of sound mind”. A will can be modified with an  addendum, often referred to as a codicil or replaced by a completely new  will. Sometimes the law can modify the effect of a will. This is  especially common in cases of divorce which usually terminates an  ex-spouse’s rights unless a specific provision keeps them in place.  However, separation doesn’t terminate a spouse’s rights. This just one  example, but a probate attorney should always be up to date on  prevailing legal issues in your state.

Often  they are, but a court is not bound by these provisions and might  overrule them if there was a specific reason to do so or a justifiable  challenge to the guardianship was offered by another family member or  interested party. It is also possible that a different guardian would be  appointed if a designated guardian was deemed to be incompetent to  adequately serve in such a role or is judged to be an otherwise  inappropriate choice, based on moral or other character issues. In all  such cases, the decision of the judge will determine the final  guardianship, but the wishes of the person making the will always be  given first consideration. It is important to add this provision to a  will since it is possibly the only way your wishes in these matters  would ever become known.

In  general, the answer is yes, but if (for example) you indicated that all  your effects should be buried in a big hole in the back of your  property, that request might be deemed inappropriate by the courts and  denied. A judge can void all or part of a will. You cannot  change the effects of law just by stating your wishes in your will. For  example, you may not suspend or terminate any legal rights or claims  that a spouse, child or business relationship may rightfully have  against an estate just by stating that in a will.  They will remain in  effect.

You  could do so by appointing co-representatives or a secondary  representative. However, this could not only cause problems during  probate if there is a disagreement between the representatives.  Normally, one representative is all that is needed and appointing more  than one should only be done where there is a specify reason to do so. A  possible example might be where one person handled only the real estate  aspects of probate and the other one was designated to handle all other  issues. Appointing co-representatives just to protect someone’s  “feelings” is almost always a bad decision and should be avoided. Often,  a frank discussion with the people involved can eliminate any issues of  concern and allow one person to take on the challenging role of  representative without the added challenges of co-representation.

 It depends on the laws of the state, but usually isn’t an absolute  requirement, but it is usually easier – especially regarding larger  estates and real estate. 

Joint tenancy with right of survivorship (JTWROS) is a common legal  method of defining property ownership when shared with another person,  but it doesn’t replace a will. Typical, this “survivor” is a spouse, but  can apply to other relationships. If one of the owners dies, the other  becomes the sole owner of the property. This means that the real estate  isn’t part of the decedent’s estate, and therefore, is not subject to  probate. However, all parties should be aware of possible tax liability  implications (if any) of such survivorship. 

A  state law could possibly require this, but generally this is a movie  scenario and not done in real life. Usually, the personal representative  of the estate provides notice of probate to all interested parties and  they can obtain a copy of the will from the probate court if desired.  Often, enough copies of the will are made and distributed to the  affected parties by the representative.

If  this is allowable in the state in question, the benefit of doing so is  that the list can be changed from time to time as opposed to changing or  adding codicils to the will.

While  each state may impose additional or alternate requirements, in general,  a valid will must be hand-written or printed and signed by the person  who has created it. This person is the “testator” and a will is usually  witnessed by two (or more) persons who must normally be “disinterested”  parties – meaning they are not named as beneficiaries in the will.  Witnesses must also be of “sound mind” (mentally competent). The  required number of witnesses may differ by state. The testator needs to  have reached the age of “majority” (18 in most states) and be of “sound  mind” (mentally competent) when the will is executed. A married person  who has not yet reached the age of majority is usually adjudged legally  capable of executing a will. Normally, it is not a technical requirement  for a will to be notarized, but it certainly is helpful to add strength  to the will. Fully “holographic” (totally handwritten) wills are still  recognized as valid in many states without being witnessed. Such a will  must be in the normal and provable handwriting of and signed by the  testator. As always, state law might impose other conditions on a holographic will.

The  laws of each state usually provide a “default will” for any person who  dies without a will, which is referred to as “intestate”. The spouse and  children of the decedent will usually be given the property of the  deceased. If no spouse and no children exist, then the decedent’s  parents will usually receive the property. Following them if they are  not alive are other siblings, grandparents, and children of the  grandparents. If no close direct family can be found, the property will  eventually revert to the state. Just be aware that in all cases, any  creditors (including taxing entities such as the state, local and  federal government) will be allowed to extract what they are owed from  the estate prior to its final disposition and this could necessitate the  sale of property to provide funding for these liabilities.

The  simple answer is immediately. Usually, death comes as a surprise to us  all and no one is aware of their impending demise. Making a will  represents doing the “right thing” today for those you love, and you  should occasionally review your will to make sure it continues to  represent your final wishes. If not – modify it. Also, almost everyone  who dies owns some sort of personal property, therefore, everyone needs  to provide their heirs with a will to prevent confusion or strife after  their death. While state law will decide what happens to property in the  estate of a person who dies intestate, the default plan normally  distributes property to relatives. Therefore, a girlfriend, boyfriend,  partner or fiancé will have no provision made for them by law unless  provided by a valid will.

 If you do not do it yourself (which is perfectly acceptable) only  an attorney can legally draft a will for you. Be aware that personally  drafted wills are often incomplete and therefore some or all of such  will can be held to be invalid under state laws. While there are  certainly kits available from multiple resources for creating a will,  they are often not state-specific. If your will fails to follow state  law in creation areas, it could be held to be invalid.