Probating a Will

A probate is, in very simple terms, a court certification that the will is valid. Probating a will is not always necessary, but it almost always is for more complicated wills. It is a good rule of thumb to probate a will, as it can help avoid speed bumps later on in administrating the estate and following the instructions of the will.

One of the main reasons people probate a will is if they have to interact with financial institutions. If all your money is in a bank when you die, it is unlikely the bank will hand over the money to someone who claims to be the executor of the estate, as if this person was not supposed to get the money the bank can be held liable. However, if the will has been probated then the financial institution cannot be found liable. And we all know how cautious banks are about liability, especially in today's global recession. You also have to probate a will if you are dealing with real estate or stocks in companies.

Therefore, in reality, if the will is not probated the deceased's assets are basically all frozen.

So how come it isn't always necessary to probate a will? Well, in some cases the executor of the estate already has access to all of the deceased's assets. The common case of this is when the spouse of the executor of the estate. The spouse would presumably have access to all bank accounts and finances, and because of this the will would not need to be probated.

If all the i's are dotted, and the t's crossed, then usually it takes a couple of weeks for a will to be probated once the documentation is filed. But filing out all the papers can take quite a while. It varies from jurisdiction to jurisdiction, but sometimes the papers can take weeks to fill out as it might require lists of all of the deceased's assets, and the value of the assets.

There are taxes on probating a will too! In Canada, probate taxes can be as high as 1.5% of the assets distributed through the will! The probate tax in Connecticut can be up to $12,500.

Reducing probate tax is a part of an estate plan, but it shouldn't be the main part. There's only so much you can do, so don't get carried away. A lot of schemes to reduce probate tax can end up causing trouble while you're still alive, like naming family members of beneficiary in the will as joint owners of property. That might sound like a good idea, but what if the new joint owner has some credit problems? Now the creditors can go after your property!

What you can do to avoid probate taxes varies a lot depending where you are, and if you believe probate taxes are a big issue you should talk to a professional.

So now you know what a probate is, and what it's for, but how do you actually probate a will? Well, just like everything else with probates it varies from place to place. Wherever you live there is probably a "probate kit" which will help you file the necessary documentation, and will cost you around $100. There are usually probate offices or surrogate courts, and if all else fails and you don't know where to turn to, talk to the lawyer who drafted the will.

Probating a will might have some costs associated with it, but a lot of the time it's necessary. If you don't know if it's necessary or not, talk to a lawyer or the probate office.