What You Should Know About Wills and Probate

Regardless of how much money or property you own, it is a good idea to have a Last Will and Testament if you want to have any control over what happens to your property after your death.

What is a Will?

A will is a legal document that indicates how you would like your property to be distributed upon your death. Without a will, your property will be distributed according your state’s intestate laws.

While having a will allows you to have more control over who receives your property than if you don’t have one, in most states, children who are permanently disabled or under the age of 18 are considered “forced heirs” and cannot be disinherited in a will.

In your will, you can also:

  • name a guardian for minor children;
  • create a trust for grandchildren, special needs or spendthrift heirs;
  • make provisions to reduce estate taxes for larger estates.

What is Probate?

Probate, sometimes called succession, refers to the process of settling the estate of the deceased and distributing the property after any debts are paid.

The probate process begins when the executor, who is nominated by the decedent in the will, presents the will for probate in a courthouse in the county where the decedent lived, or owned property.

If there is no will, someone must ask the court to be appointed as the administrator of the decedent’s estate. Often, this is the spouse or an adult child of the decedent. Once appointed by the court, the executor or administrator becomes the legal representative of the estate.

Probate Process

While the laws that govern probate vary from state to state, there are a several basics steps to the probate process.

  1. File petition with the probate court.
  2. Provide notice of the probate court hearing to the decedent’s heirs and beneficiaries.
  • Notice of the hearing is usually published in a local newspaper to attempt to notify others, such as unknown creditors of the decedent, of the beginning of the proceeding.
  1. Give written notice to all creditors of the decedent’s estate.
  • Any creditor who wishes to make a claim on assets of the estate must do so within a limited time.
  1. Conduct an inventory of all of decedent’s property and get assets appraised.
  2. Pay all estate and funeral expenses, debts and taxes from the decedent’s estate following the creditor claim waiting period.
  3. Petition the court to transfer remaining estate assets to beneficiaries.
  • Assets will be transferred to the beneficiaries named in decedent’s will. If there is no will, the property of the estate will be transferred to the decedent’s heirs according to state intestate laws.

If you would like to draft a will, search for legal documents or an estate lawyer to assist.

The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.


Written by 

New Jersey lawyer turned blogger, podcaster and legal changemaker.