If your loved one passed away with a will, there are several considerations that follow.  Our firm stands ready to provide guidance through this difficult time.

Do you have the original will?  As a general rule, the original will must be filed with the application to probate a will.  There are exceptions to to this general rule and under certain circumstances the copy or lost will may be proved to exist in probate court.  The process of proving a lost will is beyond this discussion and involves a detailed look at the facts of your situation.

If you don’t have the original will, but know someone else has the original will, they can be compelled to produce the will and deliver it to the court.

After locating the original will, the next question which you, your family, and the beneficiaries under the will must decide is whether to probate a will.  You are not required to probate a will.  Generally speaking, however, a will must be probated within four years of the death of your loved one.  Again, there are exceptions to this rule which are outside the scope of this discussion are are fact specific.

If you decide to probate the will, then you will need file an application to probate the will with the court.  Based on the contents of the will and/or the agreement of all the beneficiaries under the will, the administration of your loved one’s estate can be done by an independent administration.

Independent Administration

Independent Administration is a type of administration of a probate estate.  An independent administration is a process where the court’s interaction with the estate is very limited.  Generally speaking the only interaction by the court in an independent administration is (1) probating and recording of the testator’s will, (2) return of the inventory, (3) an appraisement, and (4) a list of claims of the testator’s estate.

If an admitted will to probate directs or if all the beneficiaries under the will agree to an independant administration, the court will order the independent administration.   The court will appoint an independent executor/executrix to administer the estate.

The county clerk will issue Letters of Testamentary to the independent administrator.  The independent administrator will then obtain an inventory of the estate, an appraisment, and list of claims against the estate.  The court will not be directly involved in the distribution of the estate assets to creditors and beneficiaries, unlike a dependent administration.

Dependent Administration

A dependent administration is substantially different than and independent administration.  In a dependent administration the court is highly involved in the process.  The will may specifically direct a dependent administration or the may be silent.  If the will is silent and all the beneficiaries are unable to agree to an independent administration, the estate will be conducted under dependent administration.

The court will appoint an executor/executrix to administer the estate under a dependent administration.  The court is intimately involved in the dependent administration.  The court must authorize numerous actions by the executor/executrix.

We have Decided not to Probate the Will

The decision not to probate the will comes with its own set of consequences.  Perhaps you are the only person listed in the will to obtain the property or the entire family agrees that “this is the way it should be.”

Since a will is only valid if probated, deciding not to probate the will puts your loved one’s estate in the same position as if he/she had died without a will, or said another way, it is as if he/she died intestate.  A greater discussion on a loved one passed away without a will can be read here.  As a result, other people may have a interest in your property.

To ensure that “this is the way it should be” is recognized by others, a family settlement agreement or other legal tools might be needed to ensure your legal rights are upheld and interest(s) are recognized.