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When is It Necessary to Probate a Will?

— October 12, 2022

If you’re planning to write a will, make sure to reach out to a legal professional to help you out with the process of hashing out the details.

A will is a legal document that a person makes while they’re still alive. It outlines their preferences for the care of their children, the disposal of their earthly possessions after they pass away to their intended recipients, and others. It’s an instrument legally recognized worldwide. 

Typically, a will can be handwritten, created through a lawyer, or in the form of an oral or video recording. The form and making of the will depend and are governed by the succession laws of each country where the maker resides or where they’re legally recognized citizens.  Different countries may recognize the will’s provisions, but its form and implementation may vary from government to government. 

The will may or may not be submitted for probate. It depends upon the executors designated by the decedent or the person who made the will. Some interested parties to the estate may require the presentation of proof that the will has passed probate proceedings. Sometimes, probate is mandated by law. 

Instances Where Probate is Necessary

Probate is the court’s process of carrying out the points enumerated in a deceased individual’s will. Not all wills need to undergo probate. Nonetheless, there are some instances that may call for it. Keep on reading to learn more. 

  1. The Total Amount of the Estate Left Behind Exceeds the Threshold Set By Law

The total amount of the estate left behind sometimes determines if the same will be qualified to undergo probate. 

It’s necessary for large estates to go through the probate process to properly account for and distribute the shares of the heirs. The court’s decision and final determination of the apportionment of shares will deter more controversies regarding inheritance sharing among the heirs and assigns.

Some states don’t require small estates amounting to less than USD$100,000 dollars to apply for the grant of probate. But certain business transactions may require that the estate assets be legally accounted for, no matter how small. So, the estate may still need to go through probate.

  1. The Beneficiaries Can’t Be Located Nor Reached

It’s the legal responsibility of the executor to distribute the estate following the instructions made by the owner during estate planning and before their passing. Unfortunately, there are many estates where beneficiaries can’t be located and are unreachable despite the efforts of the executor or administrator. 

In most states, if the beneficiary can’t be located, the executor or administrator named in the will shall be free to move forward with the administration and distribution of the estate. Yet some executors go to court first and apply for probate as a necessary precaution and protection in case beneficiaries present themselves to claim their shares in the future. 

  1. The Estate Has Debts to Be Paid

    The word debt and an eraser
    The word debt and an eraser; image courtesy of alancleaver via Pixabay,

The executor designated in the will or the will administrator needs the authority to use the estate’s assets to settle the deceased’s remaining debts and other financial obligations. It’s necessary that the estate be submitted to probate. The grant of probate will confirm the authority of the executor or administrator to manage and administer the estate. Probate also declares the authority of the executor to use or sell estate assets to pay off estate debts.    

  1. The Validity of the Will is Being Questioned

The decedent’s will, especially its validity, may be subjected to unending issues if not submitted for probate. Persons interested in the estate will time and again contest its validity. Without the declarant, the heirs and assigns might be deprived of their rightful share if the courts will not intervene. 

The holographic will, including the notarial and oral wills, are some of the forms of wills. These are testaments made by people who want their properties to be correctly managed even after death. Still, some dissatisfied beneficiaries question the proper execution of the will. They may even say that the will on probate didn’t carry out the will owner’s wishes religiously. 

Submission of the will to probate will put to rest all issues against it and its provisions once the court has granted probate. The court will declare with finality its validity and all that’s provided by the decedent in it.

Some Requirements for a Will’s Validity

A will needs to meet certain requirements in order for it to be deemed valid by the concerned legal authorities. They include:

  • The Legal Capacity of The Testator

The testator must be legally capacitated to make a will when making the same. Testators who were declared unable to read and write when making a holographic will invalidate the instrument. 

  • The Presence of Witnesses

Many jurisdictions have different requirements regarding the number of witnesses and the presence of witnesses at the time of making the will. But the absence of witnesses usually invalidates a will.

  • The Testator and the Witnesses’ Signatures

Their signatures attest to the proof of the testator and the witnesses’ presence at the time of the making of the will. The absence of even one signature without justifiable reason will invalidate the will.

To Conclude

There are more reasons why a will needs to pass through probate proceedings. Some of them are mentioned above. If you’re planning to write a will, make sure to reach out to a legal professional to help you out with the process of hashing out the details of your last will document. 

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