Getting a will probated, if you are unfamiliar with the process, can be very frustrating and confusing. Here are some answers to two very commonly asked probate questions.
Probate Questions #1 | Why Is a Will Probated?
A will is probated so that a court can determine that the will is valid because of various grounds for objecting to a will. The court will entertain the objections of individuals who have the right to object. If there are no objections, the will is admitted to probate, but if there are, there’s a specific process to resolve them.
Based on what happens, the court makes the determination that the will is valid and that the named executor is in charge, because that’s also important. Beneficiaries may object to the will, but they might object to the executor separately. That happens in contentious family situations where, for example, brothers do not get along. Mom may appoint the elder brother and the younger brother says, “He’ll be terrible. He’s never going to do this correctly. I’m going to get screwed.” And he may object.
The grounds for objecting to an executor are very specific, and it’s not easy. You can’t object to a person just because you don’t like him. You can then have a whole separate proceeding about that on the side. Sometimes these contests get so contentious that, in Erie County, the court sometimes appoints a person known as the public administrator to serve as a third party to continue with the administration of the estate while the matter is sorted out because these things can get very heated.
Probate Questions #2 | How Long Does the Probate Process Take?
Among will probate questions that people ask, this is one of the more common ones. The time limits governing estate actions are fluid, and the actual probate of a will can go quite long, especially if someone objects to it. If objections are filed, the will goes through the whole process – even, theoretically, up to a jury trial. Depending on the court’s calendar, getting the case resolved could take a year or even longer. Although that’s pretty unusual and very few cases actually go that way, it could take a while.
In the meantime, however, one of the useful aspects of a will is that, if you name an executor, that person can get what’s called preliminary letters – even though the will is not yet admitted to probate – and administer the estate, collect the assets, and pay the bills. They cannot distribute any assets to any of the beneficiaries, but they can get the job done and deal with the estate. That’s very useful if there are problems.
Once a person is appointed preliminary letters, an estate must remain open for seven months. The court won’t close an estate, and creditors have seven months to come out of the woodwork and make claims. After seven months, the estate can close. That doesn’t mean you can’t make distributions. As executor, I can make distributions, although it is important to be careful to make sure enough money is available to cover claims that may be filed later in the process. Once distributions are made, they can’t be taken back, so the executor has to make sure money will be available if someone files a late medical bill. Then, after seven months, the estate can be concluded.
If you have any further probate questions, please feel free to call our Buffalo office to schedule an appointment with our Estate Planning Attorneys Cole, Sorrentino.