While every document in an estate plan is vitally important, the will is perhaps the most vital document. The will controls how property is distributed, and it is a way to keep family harmony when there are assets. Once the testator has put their wishes down on paper, it is important to safeguard the actual document, so it can be effective when it is needed. One way to potentially safeguard a will is to file it with the county if it is allowed.
A wills attorney can take this step on your behalf, whether it is filing the will early for safeguarding or as part of the probate process. Your family can rely on a wills lawyer to provide you with the help you need, both to prepare for a difficult time and to help them navigate it when it occurs.
A family should certainly consider hiring a lawyer for help during the probate process. Probate can be very difficult and technical, with many potential pitfalls that can slow the process. The executor can be left with a large amount of work and could be potentially liable for any mistakes that they make. A Sebastian probate lawyer can help smooth the process, handling the paperwork and dealing with any difficulties that may arise, such as will contests and questions the executor may have.
If you have not already contacted a probate or wills attorney, now is the time to do so. A lawyer can assist you at various stages of the process, whether it is by drafting the will, filing it, or working with your family during the probate process.
Schedule A Consultation Today!
What Is a Will and its Purpose?
A will is a binding legal document that contains the last wishes of the testator for how they want their property to be distributed among their heirs at their death. It can also contain instructions on how they want their children to be raised and by whom.
A will is someone's chance to put their wishes down on paper and have them respected when they die. If the will is properly witnessed and the testator meets legal requirements, the will would be effective after their death. First, the estate will need to go through the probate process, where it is authenticated, and the debts of the estate are settled.
The will is a key part of estate planning. Unless one has all of their assets in trusts, it is vital that they have the will to govern the disposition of their property (that is not in transfer-on-death accounts). All it takes is some time and investment in the services of a wills attorney for your family to have the peace of mind they need to prepare them for a potentially difficult time.
To be valid, the will must meet a number of requirements, including:
- The testator must have the proper capacity
- The will must be in writing
- The will must have two witnesses who do not have an interest in the disposition of the will
Each state has its own requirements for what it takes for a will to be valid. Families should consult with a wills attorney when they are initially considering making a will to help ensure that it reflects the testator's wishes and that it will be a valid and binding legal document.
Does a Will Have to Be Filed with the County Before Someone Dies?
A will does not have to be filed with the county during the life of the testator. Usually, it can be kept safely until the time when it is needed. It can be filed after their death, and it can still be effective. However, the testator may make the election to file the will with the county during their lifetime. Some counties have safekeeping services that allow them to hold the will. The testator may choose to do this for safekeeping of the will. When the will is already on file with the county, there may be fewer questions about its authenticity, and it can make the probate process more predictable and smoother. You may consider filing a will with the county if the process allows for its acceptance and you think that there is a chance that the will can be challenged in the future. If you have made any changes to the will, it is important that you file an updated version with the county to avoid any confusion over which one is the current and valid version. There are often disputes when a “later in time will” emerges that some of the family does not know about.
The Will is Filed with the County After the Death of the Testator
Filing the will with the county is the first step in the probate process, and it opens the case with the court. Filing the will with the county does several things. The first purpose is that it allows the court to verify whether the will is authentic, this is a prerequisite for the probate process. The court needs to know that the will is genuine and it reflects the will of the deceased person. The court will also review the document to ensure that it meets the requirements, such as being signed by the testator and having two witnesses.
Filing the will with the court also puts interested parties on notice of probate. This filing may be the predicate for one or more of them to come forward and contest the validity of the will. Grounds for a will contest can include:
- The testator was not of sound mind when they made the will
- Someone else had an undue influence on the testator and used it to pressure them when they were making a will
- There was fraud involved in the making of the will
- The will otherwise did not comply with legal requirements
A Probate Lawyer Could File the Will with the County
The executor can make the wise choice to hire a probate attorney to assist them in their duties. The probate lawyer can handle the details of the probate process, which can include filing the will with the county. There are many administrative details that are a part of the probate process that an attorney can perform on behalf of the executor. A probate attorney can interface with the court, and they will make all required filings in your case. When you hire a probate lawyer for your case, they can do the following:
- Gives advice to the executor about important matters regarding the estate
- Filling out all the paperwork and filing it with the court
- Advising the executor or an interested party about a will contest (the probate attorney cannot represent the executor and an interested party in the will contest)
- Calculating taxes that the estate may owe and assisting in completing the final tax return
- Managing the finances of the estate while the probate process is pending
- Dealing with creditors who make claims against the estate and helping to settle their claims
- Distributing any assets of the estate to the beneficiaries
- Collecting on any life insurance policies in the name of the deceased
What Happens if a Will Is Lost?
Without an actual written document, a court may assume that the testator intended to revoke the will. Thus, one should take steps to safeguard their will during their lifetime, including filing it with the county (if it is allowed) or putting it in a safe deposit box. You can also keep a copy of your last wishes with your wills lawyer.
If you do not have a will, your loved ones need to go through the intestate process. This means the court appoints a personal representative who serves in the role of an executor. Then, the property needs to be divided using intestate laws of the state in which the deceased person resided. There are no last wishes down on paper that can be applied. Thus, one must take steps to safeguard their will because losing it can be equivalent to not having one in the first place.
If a will is lost, family members can attempt to try to prove its existence and contents through evidence such as witness testimony, although that may be a difficult struggle. There may be a difficult fight in probate court, especially when one family member has interests that are different from the others.
Why You Need to Hire a Probate Attorney
You may have heard various opinions and complaints about the probate process and the difficulties it may impose on families. There are various interests that need to be protected, and probate is the way that it happens. Nonetheless, probate is something your family has to go through before the assets in the estate can be re-titled and transferred to the heirs.
Probate can present a number of challenges to a family. Even if everything goes smoothly, it can take six to twelve months for the process to be completed. There is paperwork involved that must be completed correctly and the potential for things to go wrong. Possible complications in the probate process include:
- Paperwork can be mistakenly filled out, leading to additional delays in the probate process
- An interested party can come forward with a will contest, leading to potentially bitter and protracted litigation
- An unexpected creditor that the executor did not previously know about can come forward with a claim
- The executor can make mistakes in managing the affairs of the estate, leading to disputes among the heirs
- There may be disagreements over the value of the estate and how individual assets are valued
- The estate may have complex taxes that need to be filed
The executor has a fair amount of work piled on their shoulder, and it is natural to need help in a difficult situation. At the same time, the family members want the estate settled as soon as possible so they can receive the assets that they are supposed to get under the terms of the will. The executor does not have to face such an inherently challenging process on their own. Instead, they can reach out to a probate attorney, who can handle the paperwork and any other issues involving the estate. Hiring a probate lawyer does not automatically eliminate the chances of a bumpy probate process, but having an attorney can certainly reduce the possibility of things like a will contest or unexpected delays.
When to Hire a Probate Lawyer
The executor should hire a probate lawyer at the outset of the process, rather than after determining that they may not be able to do everything on their own. Especially if the estate is a large one, or if there are potentially contentious relations among family members, the executor may need extra help to see the process through to a successful conclusion.
The executor may face personal liability if they make a key mistake when administering the estate. They are held to the standards of a fiduciary, and they owe certain duties to the heirs including both the duty of care and loyalty. Essentially, the executor cannot be negligent when managing the affairs of the estate, and they must perform due diligence when making key decisions. They must also put the estate's interests ahead of their own, and they cannot engage in transactions where there is a conflict of interest. If the heirs are able to successfully sue the executor for breach of fiduciary duty, the money can come out of the executor's pocket.
Thus, the executor should hire a probate lawyer as soon as possible. Even when a probate lawyer charges by the hour, trying to handle part of probate by yourself can be counterproductive and may make the situation worse. Ultimately, the decision to hire a probate lawyer depends on the specific circumstances of each estate. By consulting with an attorney, you can gain a clear understanding of your rights and responsibilities as an executor or beneficiary, and ensure that the probate process is handled smoothly and efficiently.