death of a loved one raises a multitude of issues. Intertwined
with the emotional issues of grief and loss are the legal issues
associated with settling the affairs of the deceased. Probate is
the court process used to resolve matters concerning the decedentís
Probate refers to the court proceeding in which:
1. It is established that the decedent left a validly executed will and the value of the decedentís estate exceeds $100,000.
2. If the decedent died without a will, then his or her intestate heirs are determined.
3. A personal representative is appointed to administer the decedentís estate. The
personal representative is also known as ďexecutorĒ if named in the
will ďadministratorĒ if there is no will, or ďadministrator with will
annexedĒ if there is a will but for some reason the named executor
fails to qualify.
Types of Probate Proceedings:
1. Testate Proceedings
∑ Will is admitted to probate without further proof if the will appears to have been validly executed.
∑ Formal adjudication in court after notice is given to all interested parties.
∑ If a will is contested, evidence that the will is valid is sometimes required.
2. Intestacy Proceedings
∑ Used when a decedent left no will OR
∑ The will does not make a complete disposition of the entire estate OR
∑ An heir successfully contests the will and the will is denied probate
3. Small Estates
∑ Real property does not exceed $100,000 (requires a hearing) OR
∑ Real property does not exceed $20,000 (no hearing required)
Potential Problems requiring Probate:
∑ Contesting title to real property or personal property (clearing title to homes, boats, vehicles, airplanes, etc.)
∑ Mistakes, alterations or ambiguities in a will
∑ Revoked wills
∑ Multiple wills
∑ Lost wills
∑ Undated wills
∑ Validity of gift lists
∑ Wills not providing for spouses or children
∑ Whether a child born out of wedlock will inherit
∑ Whether a new spouse or former spouse will inherit
∑ Whether a registered domestic partner will inherit
∑ Whether a gift during decedentís lifetime is an advance payment of that personís share of the estate
∑ Gifts that are refused
∑ Gifts of specific property that no longer exists
Documents your Attorney will Need:
1. Decedentís original will, but if unavailable, a copy thereof
2. Copy of decedentís trust, if any.
3. Decedentís financial papers:
∑ Bank statements
∑ Investment statements
∑ Income tax returns
∑ Business records
∑ Real property documents
∑ Check registers
∑ Life insurance policies
4. Names and addresses of:
∑ Decedentís spouse or registered domestic partner and surviving children and children of deceased children, if any;
∑ If no surviving spouse, registered domestic partner, children, or grandchildren, decedentís surviving parents;
∑ If no surviving parents, the brothers and sisters of decedent and the children of deceased brothers and sisters; and
∑ All other persons named in the decedentís will, if any, and include relationship with decedent.
5. Decedentís vital documents:
∑ Death certificate,
∑ Divorce decrees, if any, and
∑ Proof of domestic partner registry, if any.