Last Updated on October 29, 2022 by Estate Planning FAQ
This is a very common question asked. Alternatively, the statement is typically “I have a Will so my family will not have to go through probate.” Unfortunately, a lot of false information circulates that a Last Will and Testament (“Will”), once signed, avoids probate. This is not correct. A Will is only valid once submitted to the probate court for its approval and admission or acceptance. This holds true for most, if not all, jurisdictions. The reader is encouraged to consult with a legal professional in their particular state for further confirmation.
Depending on the decedent’s residence at the time of their death, the probate rules for admission of the Will for probate will be different. This is referred to the jurisdiction of the Court. However, in general terms, submitting a Will to probate requires asking the Court to accept the document as the final Will of the decedent and requesting that it be “admitted” to probate.
Understanding Why a Will Must be Submitted to Probate
The process of submitted the Will to probate is to allow those individuals, whether they would receive the estate if there was not a will (an heir) or those that are supposed to receive under the terms of the Will (devisee and/or legatee) to have had an opportunity to review the Will. It also provides an avenue to allow the interested person to object to the admission of the Will if there are discrepancies or if the interested person does not believe that the Will is the final wishes of the decedent.
Timing of When the Will is Written
In most instances, the Will of the decedent has been written many, many years ago and was completed at a time when the decedent was of sound mind and clearly is their final wishes. Typically, there are no issues of having this Will admitted to probate, However, there are instances where the Will is prepared at or near the death of the decedent. Questions are raised at that time as to whether the decedent really had the capacity or ability to evaluate or decide how they wanted their property to be distributed at their death. There are also times when a Will is prepared close to the time of death of the decedent or at a time when their mental faculties may have diminished that they may have been unduly influenced or coerced into writing their Will in the manner it was written. Especially if the most recent Will is dramatically different from any previous Wills.
Undue Influence or Coercion
Undue influence or coercion occurs when a family member or a person that is to inherit under the Will makes promises to their parent that if they leave the property to them they will make sure that it get distributed to other family members. The family members may also withhold assistance or make threats if the decedent does not change the terms of the Will to the way in which the family member believes the property should be distributed. These are only but two (2) examples of ways that the Will that was written by the decedent may not be their true wishes. There are many others but this should provide the reader with an understanding of why the Will must be submitted to probate.
Requiring that the Will be submitted to probate provides all interested parties with the opportunity to either object to the terms of the Will or to allow it to be admitted to probate and allow the property to pass under its terms.
It is suggested that if the reader should have further questions in particular to their jurisdiction that they seek advice from competent professionals to provide further information.