Review last will and testament
A Last Will and Testament, also known as a Will, is a legal document that identifies how to distribute a deceased person's Assets.
Before beginning Probate, review the Will to know how to legally proceed. Its contents will help you organize next steps and guide the probate process as a whole.
For example, it will identify the only person legally allowed to action its directives, also known as Administering the Estate. This person, known as the Executor, will need to present the Will to a judge in Probate Court to be validated before probate can begin.
When reviewing the Will, make sure to take note of any personal directives from the deceased, such as instructions for their funeral and Final Disposition, as well as named Heirs and Beneficiaries. These details are necessary to properly action the deceased's requests.
Important
If the deceased did not have a Will at the time of their death, then their Estate will be settled according to state probate laws. See the below module for more information.
Providers
Wills can be complicated legal documents, and probate can be confusing, so it may be helpful to contact a Probate Attorney for assistance, even though they are not legally required.
Helpful Tips
What if the deceased did not have a Will?
If the deceased did not have a Will at the time of their death, then state law will govern the entire probate process, regardless of what the deceased’s wishes may have been.
This is because regardless if the deceased did not have a will, probate is still required. It is the legally required process to pay the deceased’s bills and debts, and give their assets to heirs and beneficiaries.
Without a Will the deceased is considered to be Intestate, and their estate is subject to laws of Intestate Succession in the state where they lived.
Because there is no Will to name an Executor, the court will need to appoint a person to Administer the Estate. The rules for being allowed to serve as an administrator vary greatly by state, but often this person is over 18 and lives in the state, like a family member or close family friend.
If the state needs to appoint a person, they are typically prioritized in the following order:
- Spouse
- Children
- Siblings
- Grandchildren
- Creditors
- Additional persons
To begin the process, they, or an attorney acting on behalf of the estate, contacts local Probate Court, and submits any required court documents, along with a copy of the Death Certificate, to request a hearing.
Good to Know
Courts often provide fill-in-the-blank forms to make the application process easy. Submitting them is known as a Petition for Probate and it officially requests that the court Administer the Estate.
Typically, these forms will need to be notarized before submitting to probate court. It's also incredibly important to bring personal identification to facilitate this process.
Read More
For more information about filing a petition, see the "File petition to start probate" Task in this Chapter.
Providers
Probate can be complicated and overwhelming, so it may be helpful to hire a Probate Attorney, though legally this is not required. Find attorneys near you at the links below.
What is a Will?
A Will, also known as a Last Will and Testament, is a legal document that determines who will receive a deceased person's assets.
Wills also name an Executor, Administrator, or personal representative who is responsible for following the directives of the will.
Good to Know
To be valid, a will must follow certain guidelines outlined by the laws of the state where the deceased lived. For example, some states require that a will is witnessed by at least two neutral parties (who aren’t listed in the will), while some states only require that a notary witness the signing of the will.
During probate, the Probate Court in the state where the deceased lived (also called orphans' or surrogate’s court) will ensure that the Will was properly created, and then follow its directives. As such, the will guides the probate process.
Important
If the deceased did not have a Will, then state laws will guide the probate process and probate court will dictate how assets are distributed.
For example, state law might say that John Doe’s wife is entitled to 50% of his estate, and his children are entitled to the other 50%. However, if John Doe has a will, he can stipulate how he wants his estate to be divided, and he does not have to follow state law.
If he wants to leave 75% of his estate to his wife and 25% to his brother, he can do so by leaving explicit instructions in his Will. In this case, local probate court must follow the wishes outlined in his Will instead of following state laws.
For this reason, it is important to review the deceased’s Will before starting the probate process.
Issues with the Will that may necessitate a lawyer
While it is not required to hire an attorney to help settle the estate, a probate attorney may be needed to help with challenging issues.
In some cases, a Will may be confusing, overly complicated, or subject to a dispute. When this occurs, a probate attorney can provide guidance on the appropriate next steps.
Common situations that may cause dispute, and therefore necessitate hiring a lawyer include if the Will:
- Is confusingly vague (does not include enough detail)
- Is confusingly detailed (it includes so many details that it’s hard to follow)
- Was not signed or dated by the deceased
- Was not witnessed by at least one additional party (typically a notary or attorney)
- Was handwritten, known as a Holographic Will
- Or if the the deceased had more than one will, or was not competent or “of sound mind” when they created the will
To dispute a Will, an interested person (such as an heir, family member, or someone the deceased owed money) would have to file a lawsuit in the county and state where the deceased lived.
Providers
In any of these situations, it is wise to consult with an experienced probate attorney for guidance. Find them at the links below.
What happens if the family changes after the Will was written?
If family changes occur after a will is written, it’s possible the creator of the will did not update their will before they passed.
Unfortunately, failure to update a will can result in dire consequences for the deceased’s estate (such as the wrong person getting assets).
There are many instances of family change that can cause issue for the details of a Will.
Divorce If a person gets divorced, the divorce settlement agreement may state that neither party has any right to inherit their ex-spouse’s assets.
If the deceased’s Will still names their ex-spouse as an executor, heir, or beneficiary it is wise to locate their divorce documents, because those documents might correct the error.
However, if the divorce documents do not reference anything about inheritance, the heirs of the deceased (such as their children) may have to contest the validity of the deceased’s will. To do so, the heirs may have to file a lawsuit in the county and state where the deceased lived.
Marriage If the deceased married after creating their Will and the Will does not name the new spouse, the spouse may contest the validity of the Will.
To do so, the new spouse would have to file a lawsuit in probate court in the county and state where the deceased lived. This type of lawsuit is typically handled by a Probate Attorney.
Birth or adoption If the deceased had or adopted another child after creating their Will, their child may not be identified as an heir or beneficiary in their Will.
In this case, the Executor, or someone acting on behalf of the child who was left out of the Will might contest the validity of the Will.
To do so, the executor or person acting on behalf of the child would have to file a lawsuit in probate court the county and state where the deceased lived. This type of lawsuit is typically handled by probate lawyer.
Death of a spouse, heir, or beneficiary If someone who was supposed to receive assets according to the will died before they could receive the asset, the asset remains property of the estate.
Some Wills may name an alternate beneficiary, or stipulate that another beneficiary is to receive assets if any other heirs pass. But if the Will does not provide instructions, probate court will apply state law to determine who inherits the asset in question.
This can be a complicated matter, and a probate attorney may need to be consulted to determine next steps.
Is the Will "self-proving?"
A self-proving Will is one that fulfills certain state requirements to be validated without having to go through the probate court.
Most states require that a self-proving Will include two affidavits signed by witnesses in the presence of a notary. These are statements made under oath that can be used as evidence in court.
With respect to wills, self-proving affidavits typically state that the witnesses “testify under penalty of perjury that the will is valid.”
Self-proving Wills are accepted in all states except:
- Maryland
- Ohio
- Vermont
- Washington, D.C.
If the deceased lived in a state that does not allow self-proving wills, the will must still be validated in probate court in order to begin the legal probate process.
Important
Each state validates Wills according to their own rules and procedures, so review the rules in the state where the deceased lived to confirm properly assess.
What is a trust?
Trusts are legal documents that appoint a trustee (a person or a company) to hold assets on behalf of beneficiaries.
Trusts may be used in addition to a Will or as an alternative to a Will. They can be arranged in many ways, and can specify exactly how and when assets are given to the beneficiaries.
Important
Any assets owned by a trust will bypass the probate process. This means that the assets do not have to go through Probate Court in the state where the deceased lived in order to transfer to the beneficiaries.
If the deceased had a trust, make sure to review the document closely. Because they can be lengthy and complicated documents, it may be helpful to speak with a Trust Attorney for support.
Personal Considerations
Did the deceased have a Will?
The deceased died Testate, which means they died with a Will that outlines who is to receive the deceased’s assets.
In general, having a Will can simplify the probate process, as it clarifies exactly what the deceased expected to happen with their estate.
To begin administering an estate with a Will, read through it to determine who the deceased appointed as Executor, as well as who is to inherit the deceased’s assets.
Contact any individuals named in the deceased’s will and let them know they were named and may be entitled to certain assets during probate.
Read More
To learn more about the executor, see the “Identify the executor” section of the Guide.
Read More
To learn more about notifying individuals named in the will, see the “Notify persons of interest” section of the Guide.
When someone does without a Will, they are considered Intestate. Probate is still required, but it will be guided by state law instead of the directives of a Will.
In this case, work directly with the probate office in the county and state where the deceased lived to determine who will serve as administrator, pay bills and debt of the deceased, and distribute the deceased’s assets.
Continue reading through the steps of this Guide to identify how to administer the estate without a Will.
The deceased died Testate, which means they died with a Will that outlines who is to receive the deceased’s assets.
In general, having a Will can simplify the probate process, as it clarifies exactly what the deceased expected to happen with their estate.
To begin administering an estate with a Will, read through it to determine who the deceased appointed as Executor, as well as who is to inherit the deceased’s assets.
Contact any individuals named in the deceased’s will and let them know they were named and may be entitled to certain assets during probate.
Read More
To learn more about the executor, see the “Identify the executor” section of the Guide.
Read More
To learn more about notifying individuals named in the will, see the “Notify persons of interest” section of the Guide.
When someone does without a Will, they are considered Intestate. Probate is still required, but it will be guided by state law instead of the directives of a Will.
In this case, work directly with the probate office in the county and state where the deceased lived to determine who will serve as administrator, pay bills and debt of the deceased, and distribute the deceased’s assets.
Continue reading through the steps of this Guide to identify how to administer the estate without a Will.
Is the will valid?
The Will complies with requirements outlined by state law and is legally allowed to be used to administer the estate and guide the probate process.
In most states, a valid Will means it was signed, dated, and witnessed by at least two neutral third parties (such as a notary and an attorney) who are not named in the Will.
Good to Know
A Will that was created with the assistance of a lawyer is more likely to be valid than a will handwritten by the deceased (called a Holographic Will. If the deceased had a holographic, or handwritten Will, it may be wise to speak with an estate attorney to determine if the will is valid.
Common Requirements for a Valid Will
- The Will is in writing (typewritten is preferable to handwritten, as handwritten Wills could be easily altered)
- The person who made the Will signed and dated it
- There were at least two adult witnesses who also signed the Will and dated it
It was likely not signed, dated, or witnessed by a third party.
In this case, state Intestacy laws will govern the probate process. In other words, an invalid Will is the same as not having a will at all.
For instance, state law will determine who will be responsible for settling the estate (the Administrator, how bills and debts must be paid, and who will inherit the assets of the deceased.
Good to Know
If there is a dispute over the will’s validity, a lawsuit to determine the validity of the will may be necessary. The individual disputing the validity of the will (e.g. an heir, creditor, or family member) would have to file a lawsuit in the county and state where the deceased lived.
In this case, the executor of the estate, if there is one, might be forced to defend the validity of the will in court (if they believe the will should be considered valid). If this occurs, a probate attorney may be needed to assist with the lawsuit.
The Will complies with requirements outlined by state law and is legally allowed to be used to administer the estate and guide the probate process.
In most states, a valid Will means it was signed, dated, and witnessed by at least two neutral third parties (such as a notary and an attorney) who are not named in the Will.
Good to Know
A Will that was created with the assistance of a lawyer is more likely to be valid than a will handwritten by the deceased (called a Holographic Will. If the deceased had a holographic, or handwritten Will, it may be wise to speak with an estate attorney to determine if the will is valid.
Common Requirements for a Valid Will
- The Will is in writing (typewritten is preferable to handwritten, as handwritten Wills could be easily altered)
- The person who made the Will signed and dated it
- There were at least two adult witnesses who also signed the Will and dated it
It was likely not signed, dated, or witnessed by a third party.
In this case, state Intestacy laws will govern the probate process. In other words, an invalid Will is the same as not having a will at all.
For instance, state law will determine who will be responsible for settling the estate (the Administrator, how bills and debts must be paid, and who will inherit the assets of the deceased.
Good to Know
If there is a dispute over the will’s validity, a lawsuit to determine the validity of the will may be necessary. The individual disputing the validity of the will (e.g. an heir, creditor, or family member) would have to file a lawsuit in the county and state where the deceased lived.
In this case, the executor of the estate, if there is one, might be forced to defend the validity of the will in court (if they believe the will should be considered valid). If this occurs, a probate attorney may be needed to assist with the lawsuit.
Does the will name an executor?
This individual will be responsible for settling the estate.
They will also be responsible for paying bills and debts of the estate, as well as giving estate assets to the heirs and beneficiaries of the deceased.
Contact the named executor and notify them that the deceased appointed them executor.
Inform them that they will be responsible for contacting the probate office in the state where the deceased lived.
A person, usually a family member, may ask the probate court in the state where the deceased lived to appoint them executor of the estate.
It is best if this person is an immediate family member who lives in the same state as the deceased, as this the probate process easier if the executor is local.
If no one volunteers to be the executor, the probate court may ask someone, such as an attorney, to fill in as executor of the estate.
If the state needs to appoint an administrator, individuals are typically prioritized in the following order:
- Spouse
- Children
- Siblings
- Grandchildren
- Next of kin (as defined by state law)
- Additional persons, such as an attorney
This individual will be responsible for settling the estate.
They will also be responsible for paying bills and debts of the estate, as well as giving estate assets to the heirs and beneficiaries of the deceased.
Contact the named executor and notify them that the deceased appointed them executor.
Inform them that they will be responsible for contacting the probate office in the state where the deceased lived.
A person, usually a family member, may ask the probate court in the state where the deceased lived to appoint them executor of the estate.
It is best if this person is an immediate family member who lives in the same state as the deceased, as this the probate process easier if the executor is local.
If no one volunteers to be the executor, the probate court may ask someone, such as an attorney, to fill in as executor of the estate.
If the state needs to appoint an administrator, individuals are typically prioritized in the following order:
- Spouse
- Children
- Siblings
- Grandchildren
- Next of kin (as defined by state law)
- Additional persons, such as an attorney
Did family changes occur between the will's drafting and the death?
This increases the chances the Will will be contested in court, or considered invalid by the local probate court.
To contest a Will, the individual affected by the family change will need to file a lawsuit and prove they were supposed to be included.
Common marital or family changes that may affect a will:
- Divorce
- Marriage
- Birth of a new child
- Adoption of a child
- Death of a spouse
- Death of an heir or beneficiary
These types of marital and family changes can potentially complicate the estate administration process.
If any of these changes have affected the deceased, it’s best to speak with a probate attorney.
There is a greater chance the Will is still valid and less of a chance for legal disputes.
Common marital or family changes that may affect a will include:
- Divorce
- Marriage
- Birth of a new child
- Adoption of a child
- Death of a spouse
- Death of an heir or beneficiary
Answer the other questions in this section to continue reviewing the deceased’s will.
This increases the chances the Will will be contested in court, or considered invalid by the local probate court.
To contest a Will, the individual affected by the family change will need to file a lawsuit and prove they were supposed to be included.
Common marital or family changes that may affect a will:
- Divorce
- Marriage
- Birth of a new child
- Adoption of a child
- Death of a spouse
- Death of an heir or beneficiary
These types of marital and family changes can potentially complicate the estate administration process.
If any of these changes have affected the deceased, it’s best to speak with a probate attorney.
There is a greater chance the Will is still valid and less of a chance for legal disputes.
Common marital or family changes that may affect a will include:
- Divorce
- Marriage
- Birth of a new child
- Adoption of a child
- Death of a spouse
- Death of an heir or beneficiary
Answer the other questions in this section to continue reviewing the deceased’s will.
Does the Will identify jointly held assets, a living trust or assets with beneficiaries?
These assets can be transferred to the joint owner or beneficiaries without the need to go through the probate process.
The value of jointly-held assets, assets held in trust, or assets with beneficiaries will also not count toward the total value of the estate.
This may help the estate qualify for “small” estate probate, which is often faster, simpler, and less costly than regular probate procedures.
**Common jointly held assets **
- Real estate
- Bank accounts
- Vehicles
- Investment accounts
- Businesses
Common Trust Assets
- Real estate
- Bank accounts
- Vehicles
- Investment accounts
- Retirement accounts
- Business assets
- Personal property
- Life insurance
Common Assets with Beneficiaries Assets with beneficiaries are typically Payable on Death (POD) or Transfer on Death (TOD) Accounts.
These accounts may also be referred to as a Totten Trust, Tentative Trust, Informal Trust, or Revocable Bank Account Trust.
These types of accounts are typically:
- Bank accounts
- Certificates of Deposit
- Credit Union Accounts
- Securities/Stock
- Investment Accounts
- Real estate with a Transfer on Death deed (only allowed in some states)
Read More
To learn more about assets that bypass the probate process, see the “Determine if the estate can avoid probate” section of the Guide.
The Executor will need to complete the Probate process before assets can be given to heirs and beneficiaries.
Read More
To determine if there are other ways to avoid probate, see the “Determine if the estate can avoid probate” section of the Guide.
These assets can be transferred to the joint owner or beneficiaries without the need to go through the probate process.
The value of jointly-held assets, assets held in trust, or assets with beneficiaries will also not count toward the total value of the estate.
This may help the estate qualify for “small” estate probate, which is often faster, simpler, and less costly than regular probate procedures.
**Common jointly held assets **
- Real estate
- Bank accounts
- Vehicles
- Investment accounts
- Businesses
Common Trust Assets
- Real estate
- Bank accounts
- Vehicles
- Investment accounts
- Retirement accounts
- Business assets
- Personal property
- Life insurance
Common Assets with Beneficiaries Assets with beneficiaries are typically Payable on Death (POD) or Transfer on Death (TOD) Accounts.
These accounts may also be referred to as a Totten Trust, Tentative Trust, Informal Trust, or Revocable Bank Account Trust.
These types of accounts are typically:
- Bank accounts
- Certificates of Deposit
- Credit Union Accounts
- Securities/Stock
- Investment Accounts
- Real estate with a Transfer on Death deed (only allowed in some states)
Read More
To learn more about assets that bypass the probate process, see the “Determine if the estate can avoid probate” section of the Guide.
The Executor will need to complete the Probate process before assets can be given to heirs and beneficiaries.
Read More
To determine if there are other ways to avoid probate, see the “Determine if the estate can avoid probate” section of the Guide.
Are there specific individuals named in the will?
The assets of the deceased will be divided according to the will and given to the individuals named in the will.
This could mean that some people receive more assets than others, or that some people do not receive any assets at all.
Any individuals named in the will should be contacted and notified that they were listed in the deceased’s will.
Estate assets will be distributed to heirs and beneficiaries according to state law during the legal probate process.
This usually means that they will be given to the deceased person’s spouse, children, parents, or other close relatives, according to the laws of the state where the deceased lived.
If there are no close relatives, the assets will go to the state.
The assets of the deceased will be divided according to the will and given to the individuals named in the will.
This could mean that some people receive more assets than others, or that some people do not receive any assets at all.
Any individuals named in the will should be contacted and notified that they were listed in the deceased’s will.
Estate assets will be distributed to heirs and beneficiaries according to state law during the legal probate process.
This usually means that they will be given to the deceased person’s spouse, children, parents, or other close relatives, according to the laws of the state where the deceased lived.
If there are no close relatives, the assets will go to the state.
Were people left out of the will who should have been included?
That person may dispute the validity of the will.
To do this, they would need to file a lawsuit and prove that they were supposed to be part of the will and that they were unintentionally left out.
There is less of a chance that the will can or will be contested.
This could make the estate administration process simpler and more efficient.
That person may dispute the validity of the will.
To do this, they would need to file a lawsuit and prove that they were supposed to be part of the will and that they were unintentionally left out.
There is less of a chance that the will can or will be contested.
This could make the estate administration process simpler and more efficient.
Providers to Contact
Probate Attorneys Near You
Probate Attorneys help settle a deceased person’s estate. They can act as an Executor or assist the Executor with their responsibilities. Also, a Probate attorney can ensure the Executor complies with all relevant laws and regulations.
