Applications for probate are made to the probate office in the jurisdiction with which the deceased has a close connection, not necessarily where the person died. Normally, only the executor of a will can apply for a grant of probate, and it is their duty to obtain probate in a timely manner. Executors can apply for probate themselves (which is often done to reduce legal fees) or be represented by a lawyer. With the application for probate, the applicant must also provide the original of the will, an official death certificate (not the one issued by a medical professional), a copy of the death notice and a statement of the known assets and liabilities of the deceased estate. The applicant may also be required to have published a notice in a major newspaper of an intention to make the application for probate.
Wills are a common estate planning tool, and are usually the simplest device for planning the distribution of an estate. It is important that a will be created and executed in compliance with the laws of the jurisdiction where it is created. If it is possible that probate proceedings will occur in a different jurisdiction, it is important also to ensure that the will complies with the laws of that jurisdiction or that the jurisdiction will follow the provisions of a valid out-of-state will even if they might be invalid for a will executed in that jurisdiction.[8]
Executors "step into the shoes" of the deceased and have similar rights and powers to wind up the personal affairs of the deceased. This may include continuing or filing lawsuits that the deceased was entitled to bring, making claims for wrongful death, paying off creditors, or selling or disposing of assets not particularly gifted in the will, among others. But the role of the executor is to resolve the testator's estate and to distribute the estate to the beneficiaries or those otherwise entitled.
Mediation serves as an alternative to a full-scale litigation to settle disputes. At a mediation, family members and beneficiaries discuss plans on transfer of assets. Because of the potential conflicts associated with blended families, step siblings, and multiple marriages, creating an estate plan through mediation allows people to confront the issues head-on and design a plan that will minimize the chance of future family conflict and meet their financial goals.
However, many accounts, such as bank savings, CD accounts, and individual brokerage accounts, are unnecessarily probated every day. If you hold these accounts, they can be set up—or amended—to have a transfer on death (TOD) designation, which lets beneficiaries receive assets without going through the probate process. Contact your custodian or bank to set this up on your accounts.
