On occasion I meet with clients who think that only the estates of people who die without a will have to be probated. That mistake is based in large part due to the formalities of signing a will. The fact that wills are witnessed and notarized makes some believe it should avoid any court probate proceeding. However, even if a person signs a will in the presence of witnesses and a notary, a will must still be probated to become “official.” The only exception to that general rule is where the estate of a decedent is very small. Then there is a simplified method of distributing that small estate.
The following example shows why validly executed wills still require probate. Imagine that you are a banker. A woman brings in her husband’s death certificate and her husband’s original will and puts them on your desk. “Here are my husband’s death certificate and his original will,” she says, “on page three of the will, it says that I get all of his property and that I am his personal representative. I want you to turn over his accounts to me.”
How do you know that the will she is placing in front of you is the last will of her husband? What if the husband had executed a later will disinheriting his wife – and, of course, she is showing you the prior will that still has her as a beneficiary? How do you know whether or not somebody objects to the wife being the personal representative of the estate? How do you know whether the will was validly signed or whether it was fraudulently made? You simply can’t know the answers to these questions based on her representations alone – and as a banker you aren’t willing to take the risk.
So, one main purpose of probating a will is to have the court declare that a will is the last and valid will of the decedent. As part of that proceeding, the court will appoint the personal representative of the estate and issue “Letters Testamentary” to the personal representative. The “Letters Testamentary” document shows third parties that the court has approved the appointment of the personal representative. With Letters Testamentary in hand, the appointed personal representative can then gather, manage, and dispose of the assets in the estate as directed in the will.
A probate proceeding also gives the named beneficiaries in the will and other interested persons the opportunity to object to the authenticity of the will or to the appointment of the nominated personal representative. This gives the beneficiaries the chance to blow the whistle on any person who tries to enforce an outdated or fraudulent will, or to keep an untrustworthy person from acting as personal representative.
Although making a will does not keep you out of a probate proceeding, it does streamline the probate process. The simplified probate proceeding significantly reduces the time, attorney’s fees, and costs your family will spend on probate costs. Having a will also puts you in the driver’s seat to choose your beneficiaries, the division of your estate, your personal representative, and the guardians and conservators for your minor children, if any. If avoiding probate is one of your estate planning objectives, using a revocable trust is the tool of choice instead of a will.