Must a Will go to Court (Probate)? - Makofsky Valente Law Group, P.C.

Welcome to Part 2 of our Probate series.
Probate is a court process where a judge determines whether a particular Will is a valid last Will and testament and whether there are any objections to the Will. Once approved, probate empowers the executor to act on behalf of the estate to carry out the instructions in the Will.

Not all Wills are intended to require the probate process, however. For example, when Wills are drawn up for a husband and wife, when the first spouse dies probate is often unnecessary as both spouses owned all of their assets jointly with a right of survivorship. This means that when the first spouse dies, the surviving spouse inherits everything via a process called operation of law. No court intervention is necessary.

It is only at the second spouse’s death that one of the Wills requires probate to formally transfer the assets from the deceased spouse’s estate to the beneficiaries named in the Will.

Are There Any Benefits to Probate?

Although to the layman probate often seems complicated, it provides many advantages for the estate and beneficiaries. Probate puts someone in charge — the executor, who is responsible for paying the legal debts of the deceased — and gives the executor access to the estate assets to pay these bills before distributions to beneficiaries are made.

Probate puts in place a process to limit what claims creditors can place on the estate and empowers the executor to file the deceased’s last income tax return and estate tax return (if required). Where directed by the Will, probate empowers the executor to set up and fund trusts for beneficiaries who are underage or disabled or burdened by creditors. Probate also allows an executor to search for and recover unclaimed funds such as forgotten bank accounts and stock certificates. Probate provides the executor the power to invest estate assets prudently until they are distributed to the named beneficiaries.

The probate process is monitored by the court and and provides a structure to assure that the estate will be handled in an orderly way, and that the testator’s wishes will be followed.

This was the second in our series on Probate. Stay tuned for next week’s topic!

At Makofsky Valente Law Group, P.C. we are here to help with all of your estate planning and future needs. We are only an email or phone call away!

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