October 1, 2023


Association Of Law

5 Important Probate Facts You Cannot Miss!

5 min read
5 Important Facts About Wills and Probate - Silversurfers

Probate is an important legal document that needs careful consideration for various aspects like probate applications. Knowing the essential facts regarding probate is undoubtedly beneficial in many ways. As your ultimate testament, it guarantees that your final wishes are fulfilled and that your loved ones look after your passing. The executor you choose in your Will would ensure your estate gets dispersed as per your wishes.

The executor must submit the Will for probate, and the court will monitor the administration of the estate during that period. During probate, the assets are identified and inventoried by the executor and then prepared for distribution. The court will inform and order the executor to pay creditors.

Once all the chores are completed to the court’s satisfaction, the estate will get closed, and the inheritors will get their endowments. All of this seems harmless enough, but before choosing to use a will, you should be aware of a few probate-related risks discussed in this article. We look at intriguing will-related statistics, address your queries, debunk some misconceptions, and dispel misunderstandings.

1. If someone passes away without a Will, the state won’t take everything.

Making a Will can help you avoid worrying about the government seizing your family’s inheritance, among other benefits. If you pass away without any valid Will (referred to as dying “intestate” in legalese), the grant of probate in SA will become challenging and state laws govern the estate’s division and vary from state to state.

Typically, your spouse and children will inherit first. Regulations vary from state to state; in some, a parent’s assets are divided amongst the surviving spouse and children. Do you want your 8-year-old to inherit one-fourth of your bank accounts? That is why  creating a Will in your lifetime is important.

Does the state ever acquire assets? Yes, but only if there are no known family relatives. As long as your estate’s attorney, who manages your affairs, can find your uncle’s long-lost kid, the state won’t get its hands on your money. The word for this is “escheat,” and since it’s not very common, there’s a strong possibility you’ve never heard it before.

2. Assets go through the probate process

Unfortunately, a sizable portion of assets must go through the probate procedure. Any valuable personal property owned by the deceased, any real estate they owned, any bank accounts not assigned to a beneficiary or in a joint statement, and anything not mentioned in a Will must be  transferred through probate.

Beneficiaries may get selected after the probate procedure, which might take some time to complete. If there is no Will identifying beneficiaries, the court will decide who will get an inheritance; it is essential to highlight that the court will take the interests of close relatives and friends.

3. A Will can be replaced or modified

If your current Will does not clearly express your wishes, you can make changes as needed. A clause, an amendment, or a brand-new will are all options. Any modifications to your current must follow all relevant rules and laws. A provision must get formally drafted and signed to be enforceable.

A clause must also have two witnesses’ signatures and get notarised. The courts may dismiss your Will if you make inappropriate modifications. Never make changes to your Will directly on the page by hand. Therefore, the Will would be null and invalid. Alternatively, you might revoke your current Will and create a new one.

One way to revoke the original Will is to obliterate it. You can also write a new will and use the appropriate language to state that the previous one is being withdrawn. To guarantee that any modifications to your Will are appropriately executed and recognised by the law, you should consult an attorney before making any changes.

4. It does not take long to probate an estate

Most estate settlements take a short time. In most cases, the only actual holdup is the deadline set by state law for creditors to make claims. The creditors’ claim window may be open for three to twelve months, depending on the state. The probate procedure often begins when a notice appears in the local newspaper.

As soon as the waiting time is up and the personal attorney has acquired all the assets, paid off all the debts, and filed the necessary taxes, the estate can be closed. In states with estate or inheritance taxes, it could be essential for the estate to acquire a tax clearance letter from the state revenue department. An organisation usually requires a few additional months. But most estates are settled within a year.

5. The cost of probate will consume only some of the estate assets

There are a lot of unsettling rumours going around about how expensive probate is. If you think the worst, you could be concerned that your family won’t get much after paying the court charges and attorney fees. Thankfully, that is entirely false. First, a frequent query is whether or not all Wills call for probate.

State laws demand that they be provided to the executor or lodged there, even though many estates do not need probate. The only property that belongs to the dead entirely needs to go through probate. Additionally, the family might be able to profit from less expensive probate processes if the “probate assets” are of low enough worth.

Even so, the expenditures will probably be 5% of the estate’s worth, even if formal probate is necessary. In most states, it costs several hundred dollars to file a probate case, publish the required legal notices, and get an attorney to handle everything. Add some cash to cover extra costs like appraisals and certified copies of court documents.

Connect with Probate Consultants

Probate can be complex and overwhelming, but understanding its purpose and taking appropriate steps can help simplify matters significantly. Knowing what you need to do ahead of time will help ensure that everything runs when you begin the process and prevent any surprises along the way! With this information in mind, you should now understand how probate works and what factors you should consider when dealing with this situation.

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