The probate process involves proving whether a will is genuine or not. A will requires to go through the process of probate. This will always be true unless a legal statute provides otherwise. The probate court will only allow the distribution of an estate after the completion of the probate process.
The general probate process without any hindrance provides 5 basic steps:-
- Registering death and finding out if there is a will
- Applying for Grant of Probate and Sorting out Inheritance tax
- Informing interested parties and closing all accounts
- Valuing the estate
- Distribution of the estate
To complete the process for probate, there should be proper compliance with all the statutory requirements. A testamentary document or a will providing instructions for the execution of the deceased’s estate is of greatest importance while going through the probate process.
Both formal and informal procedures take place during the execution of a will through probate. Generally, the process and proceeding of a probate establishes the permission for the grant of probate, and final authorization for distribution of the estate. To do this, it analyzes the death of the testator, the estate in question, conformance to legal provisions, and the genuineness of the will. Hence a comprehensive process is the need of the hour
A formal hearing of a probate proceeding will admit a will to probate if not one objects to it.
A Contested Will
A contested will can have many reasons.. These refer to external and internal validity.
The grounds on external validity include:-
- the disappointment of due execution
- absence of testamentary ability
- absence of intent that the instrument be a will
- Undue influence
The grounds on internal validity or internal legitimacy are generally raised at a later date of proceedings. These include:-
- Infringement of the Rule against Perpetuities
Also to the above-mentioned grounds, the distribution of the estate of the deceased based on laws of descent if the rules of distribution according to the testamentary statements are against legal provisions.
Also, only interested parties can contest a will. These can include closest relatives who will get the property and intestacy results. Other interested parties include buyers of property from the beneficiary or beneficiaries, executors or individual delegates under earlier wills. The state can also be one of these parties if there is a chance of Escheat, which implies that the public authority will get the property if no living beneficiaries can be found. Finally, creditors, be that as it may, by and large are not qualified to challenge a will. It is very imperative to understand who can and who can’t contest a will to remove any and all ambiguity in any such cases which can arise.
Effect of a Contested Will
A personal representative or your probate attorney must protect the will against assault and should use their earnest attempts to have it continued in the event that the person in question accepts that the will is large.
The following provides the various aspects that you can look for keeping up with the probate process and not let contestation affect the process.
Agreement not to Contest
A testator can go into an agreement with her or his beneficiaries where they make a deal to avoid challenging a will. In the event that the agreement is upheld by legitimate consideration, the beneficiaries will be kept from challenging the will. The recipients under a will and the beneficiaries can go into a legitimate agreement not to challenge a will. These incorporate an Injunction against the indictment of the challenge, an activity at law for harms, or a guard to the challenge.
The right of appeal
A right to appeal from a probate order is given to any individual who might endure a direct money related misfortune because of the order. The probate court then will investigate the appeal and reopen the case of probate. You can use this towards contesting an already contested will.
There are few avenues available other than appealing the contested will and proving against it. This can be a lengthy and overwhelming process. Thus, you need to use certain activities to overcome this and protect your estate. This is indeed crucial. A will can generally be contested through a contest in the court having jurisdiction over probate, and separate actions to set aside the order granting or denying probate. An appeal from the order granting or denying probate should also be looked for. Taking measures beforehand such as an agreement not to contest can also become a contingency plan towards safeguarding a will.