Is a Will right for me?
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When you create a Will, it is very likely that the Will will be required to go through the Probate process.
Probate is usually a court supervised process through which a person's estate is settled. Probate is required for anyone who creates a Will, or for anyone who dies Intestate. Probate administration of a decedent's estate includes notification to heirs, the collection of the decedent's assets, the payment of debts, the payment of expenses and taxes, and final distribution of the remaining assets.
The Personal Representative of the decedent's estate is charged with settling up the estate. While the decedent may appoint a Personal Representative in his/her Will, so may a court. The Personal Representative will not be allowed to settle up the decedent's estate until they hire an attorney (which is partially why the process is so expensive). Only the property owned by the decedent at the time of death, and not subject to a Trust or valid Non-Probate Transfer, will be subject to Probate.
If a decedent dies with a Will, that Will must be presented before the court and declared valid. Traditionally, the witnesses to the Will were required to present themselves at the court hearing to validate the Will. To prevent this, however, at the execution of any Will, the witnesses and the Testator will sign an affidavit affirming that the Will requirements were met.
If there is a valid Will, that Will may contain provisions requiring the "independent administration" of the decedent's estate. Such an independent administration may be done without court approval; however, the court may still be involved in the process of settling up a decedent's estate. A Will may also be probated through "supervised administration," but because the court is required to approve each action taken by the Personal Representative, supervised administration typically is more costly and time consuming than independent administration.
While The Taormina Firm does not conduct Probate administration at this time, please contact The Taormina Firm about your options for avoiding Probate, or for a referral to an attorney willing to help with any Probate proceedings.
To learn more about how to avoid Probate, talk with Vince Taormina, an estate planning attorney with The Taormina Firm.