Probate: How to "Prove" a Will

When you pass away, your beneficiaries and executor may have to prove your will is valid through a process called probate. Probate is a process where a court considers the many legal aspects of the will, including if it was legally created. The court will review if all assets are listed, if the assets are properly valued and if the assets can be passed on in the way you have chosen. You will take no part in the probate process for your own will. However, by making your will lawful and easy to manage, you will make the process much easier for your beneficiaries.

#1 Follow the Laws of Your State

First, it is important to recognize that all wills are subject to the laws of the state where they are created. Each state has its own regulations for inheritance, property tax and contracts. So, it is best to work with a lawyer registered in your state on your will. If you are going to work with a lawyer outside of your state of residence, the lawyer typically must have a license in your state or you must have property in the state the lawyer resides in.

#2 Choose the Correct Type of Will

There are three types of wills, and some are more fool-proof than others. An attested will is signed by you and two witnesses. This type of will is harder to contest in court after your death. If you sign a holographic will, however, you are the only witness to the writing and signing of the will. As such, your executor must prove you did indeed write and sign the document, had the capacity to do so and have properly listed your assets. Perhaps the simplest option is to elect a statutory will. This is a form with "fill in the blank" options. This will is best for those with a modest estate.

#3 List and Value Assets

Your will must list and value your assets. If not, a judge will ask your executor to do this after your death. The executor will have to research all of your estate holdings including real estate, heirlooms, savings accounts, stocks and retirement accounts. These lists can be exhaustive, even for a small estate, and you will likely burden your beneficiaries if you do not properly list up front. As such, it is preferable for you to re-write your will when you acquire new assets.

#4 Lawfully Pass on Assets

You cannot simply choose to select beneficiaries of your assets at your own discretion. Surprisingly, there are some laws governing who you can pass on your estate to and in what portion. Your spouse has particular rights in this case. A spouse is entitled to a portion of an estate ranging from 30 to 50 percent, depending on the state of residence. You cannot disinherit a spouse in the absence of a prenuptial agreement. With other assets, you should specifically list beneficiaries. Otherwise, your portion of the estate may also default to the spouse even if you wish for your children, other family members or charities to receive the assets.

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