17th Feb 2013
Probate is a process wherein the court oversees the distribution of the assets of the decedent to his heirs. The essential spirit behind a probate is the assurance that the creditors (and the government) will get paid what’s due them before the assets are transferred to the beneficiaries. The probate process can be short or long depending on whether disputes arise from it. Disputes usually come from the beneficiaries who may question the validity of the will or their share of the estate. Thus, the process may be contested or uncontested probate.
In an uncontested probate, the beneficiaries accept the validity and contents of the will. Thus, the process will not be extended by costly litigation. The opposite is true for contested probates. Beneficiaries go to court to determine whether the Will was validly executed or whether they have their fair share of the inheritance. Certainly, even in the afterlife, you would be pleased to know that your beneficiaries are contented with their share of their inheritance.
The key to having an uncontested probate instead of a contested one lies in the execution of the Will. While a layman can execute a Will, it is best that he is assisted by an estate planning lawyer well-versed in the California law. While the layman may feel he is preparing just about any legal document, he should realize that the document carries much impact especially with his loved ones after he passes away. For example, in executing a Holographic (handwritten) Will, the person must make sure that the Will does not have any typewritten marks and that it can be proven that it was not forged. In executing an Attested or Statutory Will, he must make sure that the will was signed by two witnesses who are not beneficiaries or who have no interest in the estate. An estate planning lawyer in California can point these out.
It is bad enough that the wishes of the testator will not be met (or disregarded by the probate court when it deems the will invalid). However, time and cost factors will further aggravate a contested will. The probate process stops when a person contests a will for its validity. The litigation period may last for a few months. Disputes arising from the share of the estate will extend the probate process even further. The median cost of a probate process is from 2 – 7% of the estate. Lawsuits unduly extend the probate process and jack up the costs.
In sum, the key to whether the probate will be contested or uncontested lies greatly on how the Will was executed. It is always best to get the help of an experienced estate planning lawyer in California when executing your Will to minimize chances for contests when you are already in the afterlife. Contests may be great for sporting events, but not for estate planning.