Frequently Asked Questions

Advances to Heirs of Estates in Probate

A will is document in which a person (the testator) regulates the rights of others over his property after death. Typically a will spells out a person’s final wishes, including who is to receive what after the person has passed away.

A holographic will is a will that has been entirely handwritten and signed by the person. Normally, a will must be signed by witnesses attesting to the validity of the person’s signature and intent. In some jurisdictions, unwitnessed holographic wills need to meet minimal requirements, such as the following, in order to be probated:

  • There must be evidence that the person actually created the will, which can be proven through the use of witnesses, handwriting experts, or other methods.
  • The person must have had the intellectual capacity to write the will, although there is a presumption that a person had such capacity unless there is evidence to the contrary.
  • The person must be expressing a wish to direct the distribution of his estate to beneficiaries.

A person can only have one official will; if more than one will is made, the latest will is generally taken to be the official last will of the decedent. The probate court is the ultimate authority on which will is the last will of the decedent. If the probate court finds that the will is not valid, then the decedent’s property will be distributed as if no will ever existed (by the intestate laws of the state where probate is taking place).

A will can be challenged primarily on the following grounds, among others: the person was not of sound mind or body when the will was made; that the will is forged; that there is a later will than the one in question; undue influence.

Challenging a will is a very serious matter. A challenge should be made only if the person challenging has solid evidence that the will in question is not valid.

Probate is the judicial process whereby a will is “proved” in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the state of residence [or real property] of the deceased at time of death in the absence of a legal will.

A living will provides instructions in case someone becomes incapacitated and is unable to direct their own health care decisions. Living wills do not dispose of property nor are they subject to probate – they are a separate entity that spells out a person’s wishes for their care in the event that they cannot express their decisions.

A codicil is a document that amends, rather than replaces, a previously executed will. Amendments made by codicil may only add or revoke a few small provisions, or they may completely change the majority of the provisions of the original will. Each codicil must contain the same legal requirements as the original will, such as the signatures of the person and two or three disinterested witnesses. Codicils should be clearly labeled as such to avoid confusion as to whether or not the codicil is in fact a whole new will.

A specific bequest is a gift that is made by a person for a particular heir. An example is a line in a will that states something along the lines of “$100,000 to my nephew Steven.” Specific bequests are given priority and are satisfied before the residuary estate is distributed.

The residuary estate is what is left over after the decedent’s debts, probate expenses, and specific bequests have been satisfied. Normally a will provides for the residuary (left-over) estate to be divided among named individuals.

Contact Us

Please Use The Form Below & We Will Contact You Shortly