Do I Have to Probate a Will?

by John Rodgers

No.  Wills are legal and effective without probating them; however, you may find it necessary to probate a will.

Generally speaking, there are two reasons you would need to probate a will.  The most common reason is to transfer personal property such as bank or brokerage accounts.  Let’s say your aunt Betty passed away.  She was single at the time of her death, with no children, and she left a will naming you as her executor and sole beneficiary.  Her only asset was a bank account with $100,000 in it.  Seems simple enough.  You take the will down to the bank, show them the will, maybe your id, and they give you the money.  Not so fast.  The banker will tell you that the account is still owned by Betty or, if she has passed, her estate.  And because you are neither Betty nor a legally appointed representative of her estate, they will not turn over the money to you.  In order to get the money, you will need to become a legally appointed representative of her estate, and the only way to do that is to probate Betty’s will.

In its essence, probating a will means nothing more than proving to a court that the will was executed by the deceased, was executed in accordance with the law, and is the last, most recent, will of the deceased.  Once satisfied that the will is, in fact, the legal last will and testament of the deceased, the court will then appoint an executor, usually the person named in the will to serve.  The executor will be issued “letters testamentary”.  The letters testamentary is a document, akin to a power-of-attorney in death, clothing the executor with the legal authority to act on behalf of the deceased’s estate.  You can now proceed to the bank, present your letters testamentary, and the bank will then turn the proceeds over to you, not as Betty’s beneficiary, but as the executor of Betty’s estate.

The second reason you may find it necessary to probate a will is to shorten the time a creditor has to file a claim against the estate.  By way of example, suppose that while going through aunt Betty’s things you not only discover her $100,000 bank account and her will naming you as executor and sole beneficiary but also bills from several different credit card accounts.  If Betty’s will is not probated, these creditors have one year within which to file suit against Betty’s estate.  If you have already taken and spent the money, they can actually come get it back from you.  If, however, you probate Betty’s will and give these creditors actual notice of the estate opening, the creditors have just four months to file their claim against the estate.  Claims filed after four months can be rejected.

The question of whether to probate a will can be more complicated than the examples above, but an experienced attorney can help guide you in the right direction.

This month’s post is written by Attorney, John Rodgers.  John focuses his practice on corporate and commercial litigation, insurance, personal injury, governmental law, land use/zoning, estate planning, wills and probate.

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