A decedent dies either with a will (testate) or without a will (intestate). If the decedent has executed an instrument which its purpose is to be the decedents’ will, then its validity as a will must be proved. This involves what is called probate. As a result whether the decedent died testate or intestate. The decedent’s estate must be administered under the authority to a proper state court. Accordingly, we’re first to consider probate if the decedent died testate. Then the effect of intestacy and finally the administration of the decedent’s estate.
Probate is the procedure of proving to a proper court that an instrument is the will of a decedent. An instrument can be effective as a will only on the testator’s death. The instrument is submitted to the proper state court where it’s subject to probate. This court is usually called a probate court or a surrogate court.
The state in which the decedent’s place of residence has jurisdiction over the will of the decedent and the decedent’s property. Except that if any of the decedent’s real property (real estate) is located in another state. Then the latter state has jurisdiction to determine the validity of the will to the extent of such real property.
The will is probated in the probate court in the county where the decedent’s place of residence. Once it’s probated and found valid there; the probate is effective in all other states except for real property in another state. The probate proceedings are begun by the filing of a petition for probate with the proper court by any interested party. It’s usually the person who is named in the will as the “personal representative” desired by the decedent. All interested parties are notified of the proceeding.
The witnesses to the “will” testify under oath as to the execution of the will. If they are not available or if the original will is lost or destroyed by other than the testator, statutes make special provision for probate under these circumstances by other evidence.
This testimony of other people and proof of a copy of the alleged lost or destroyed will.
When the instrument is approved by the court as being the will and testament of the decedent. Number 1 for Free Legal Advice . A “letter of administration” is issued by the court to the person named in the will as desired by the testator to be appointed by the court to represent the testator and administer his estate.
The instrument can be contested as not being the will of the decedent and if it’s found to be invalid as a will and there’s no other instrument proved as a valid will, then the decedent has died in intestate. In states where the letter has been adopted reference should be made to it because of its provision for flexibility in handling probate of decedent’s estates.