When we "probate" a Will, we are having the Court recognize it as official and proper. The Court then grants "Letters Testamentary" to the Executor, so they have authority to act.
When starting out with a probate proceeding, there are certain things to determine right off the bat. These are important because they determines how simple or easy your proceeding is going to be.
Here are 3 important ones:
1. Does the Executor have the ORIGINAL Will. This is very important, and quite frequently clients come in and all they have is a copy. Copies can be probated, but it is much harder. When the client doesn't have the original, serious efforts must be made to locate the original. Some of the places I suggest the clients look are:
- The decedent's papers and records. They usually say they looked. I suggest they look again.
- Safe deposit box. If the decedent has one, very often the Will is in there. Getting it out after the person has died takes some legal work.
- With the drafting attorney. I don't generally hold original Wills, but many attorneys do. I suppose it increases their chances of getting the probate. Anyway, sometimes we have to extract the Will from the drafting attorneys, and sometimes it's a royal pain. What if they died? Moved? Lost it?
- On file with the Court. Many lawyers don't know a Will can be filed while a person is alive. I've done this a few times, usually when I am concerned that an angry relative might get access to the decedent's Will and destroy it.
- In the possession of another family member.
2. Did the witnesses execute a "witness affidavit"? A will does not have to be notarized. The legal requirement is that it be "signed in front of two witnesses". However, best practice for will execution is to have the Will signed in front of two witnesses and then have the witnesses sign an Affidavit, attesting that everything was done that needed to be done. When this Affidavit is with the Will, you don't have to locate and contact the witnesses. When the Will doesn't have the witness affidavit, and you want to probate, you have to find the witnesses and get them to sign an Affidavit. What if their signature is illegible? What if they died? Moved? Don't remember anything? I've encountered all of these. Generally the problems can be solved, but it's much more work!
3. Can we identify and locate the "distributees". These are the people who would inherit under intestacy. In a probate proceeding you have to get jurisdiction over them, as they are the only people with standing to contest the Will. It's difficult when you (or the client) don't know who they are and/or where they are. Also, sometimes these people present other problems.....dead, missing, mentally incompetent, incarcerated, questionable paternity, etc. A drafting attorney should obtain this information, and press for it even if the Testator doesn't want to give it. This saves a ton of trouble and expense later. When analyzing a new probate, the first and most important issue is always "what will be involved in getting jurisdiction?"
Sometimes potential probate clients ask "How much will it cost to probate a Will?" I would not offer a quote without at least inquiring about the these important "little things".