This article is first in a series of things to consider and steps to take when planning for preservation of your estate and affairs or those of a loved one.
"What happens when we die?" is often a question on the lips of children or philosophy students – and it's a familiar query that becomes more pressing as we age. Though our considerations of after-death events are usually rooted in the religious or philosophical, it is equally important to consider the literal and legal answers to this universal question. Typically, probating an estate is an administrative necessity that accompanies the passing of a loved one. There are many forms this probate process may take, with varying levels of complication. In this short series, we will walk through (in broad strokes) the most common probate processes—starting with the simplest.
What Constitutes a Valid Will?
The simplest probate experience is when the Decedent dies with a valid Will. A valid Will has many advantages: it identifies who the Decedent wished to be her Executor; it accounts for all of her Estate; and it requires little in the way of additional action or court interference. For the easiest path through probate, the Will (in addition to being properly constructed) should include four specific items:
Independent Executor
First, the Will should appoint Decedent's chosen "Independent Executor" and any preferred alternates, in case Decedent's first choice of executor is unable or unwilling to serve. The identification of an Executor is important because that creates a chain of command as to who is responsible for the handling of Decedent's estate1. It is also important to include the word "independent" when identifying the role, as it specifies to the court that Decedent trusts this person to handle the estate without court interference2. Being an "independent" Executor will make it much easier for the Executor to quickly pay the debts and make the disbursements of the Estate.
Bond and the Executor
Second, the Will should include language that "no bond of any kind" is required by the Executor and that "no action" other than the probate of the Estate need be taken. A "bond" is essentially collateral, which the court keeps in trust while the Estate is probated. The purpose of a bond is to ensure the Executor does her job correctly and does not steal from or otherwise harm the Estate. Should the Executor split town with Estate assets, for example, the court can use the bond money to pay debts or beneficiaries of the Estate. Just as we specify desire for an independent Executor to allow for a speedy and simple probate, specifying that the Executor need not pay bond allows for an easier probate, as it does not require the Executor undergo financial strain in order to serve.
Required Signatures
Third, the Will must be signed by the Decedent and two subscribing witnesses, and the Will itself should have code-compliant language that identifies the Decedent and her two witnesses. This is but one of the essential elements of a valid Will, but easy to overlook and so worth highlighting. As an attorney, it is important to be detail-oriented and ensure the drafted Will complies with all code requirements. Often, the attorney who prepared the Will has individuals from her office act as witnesses—as they will be easy to track down in case a need for verification arises.
The Value of a Self-Proving Affidavit
Fourth and final on this abridged list is the inclusion of a self-proving affidavit. If the name of the game is setting up a swift and easy probate, the self-proving affidavit is a key player. Including a self-proving affidavit (which must include all the elements prescribed by the code as well as the signatures of the Decedent and her two witnesses) allows the court to forgo the testimony of subscribing witnesses at the prove-up hearing. Since the Will is self-proved in accordance with the code, the court does not need to call upon one or both of the subscribing witnesses to confirm the validity of the Will or of Decedent's capacity at the time of signing.
The Probate Process – What to Expect
Now that we have gone over the short list of things to look out for in a valid Will, let us set your expectations for the probate process itself. First, you must submit to the court an Application to Probate Will, which is ideally accompanied by Decedent's death certificate and Decedent's Will. Once these documents are received by the court, you can set the matter for hearing. It is essential to check the local rules when preparing for a hearing, as the documents or testimony required may vary depending on the court. Typically, you may submit your proposed Order and Proof of Death prior to the hearing.
Second, attorney and Applicant typically attend the hearing together3. The attorney will walk the Applicant through her testimony regarding the Will and estate (following closely the information shared with the court via the Proof of Death) and asserting her willingness and capability to serve as executor. If the Will is not self-proved, subscribing witnesses to the Will may be called to testify as to the veracity of her claims and the validity of the Will.
If the judge approves, an Order appointing Applicant as independent Executor and approving the release of Letters Testamentary is signed. The court clerk will send the Letters Testamentary to the Applicant; these Letters give the Applicant legal authority to access estate funds, pay estate debts, and distribute the estate in accordance with the Will4. Concurrently, the Applicant must take the Oath of Executor, swearing that she will faithfully execute all the duties required of her. Once she is sworn and in possession of the Letters, the Applicant-turned-Executor is free to manage the estate to its close. At this point, the only additional filing is typically an Inventory, Appraisement, and List of Claims (or an Affidavit in Lieu of Inventory, Appraisement, and List of Claims), that must be filed within 90 days of the Executor's appointment. The point of the Inventory is to identify and categorize all the property in an estate. To this end, the Executor should keep careful receipts of all her actions, in order to account for any changes in the Inventory.
Whether you face a simple journey with a valid Will or a more complicated probate, the assistance of a qualified attorney can ease the way. And while it may be scary to plan for the unknown, retaining an attorney to draft a valid Will while you are sound of mind is an easy way to lighten the load for those caring for you in the future.
Footnotes
- If each person listed in the Will is unable or unwilling to serve, do not worry—by providing the court with the reason for their inability (typically death or declination) you can petition for the appointment of someone not named as Executor or alternate Executor in the Will.
- An "independent" administration is the opposite of a "dependent" administration, where the administrator is subject to court overview and requires court approval on all actions taken in the Estate.
- Unless a court hears the matter by submission, meaning no one has to attend in person, and the judge will issue an order based off the documents (Application/notarized Proof of Death and Other Facts) provided in advance of the hearing date. If this is the case, make sure the Client signs and notarizes the Proof of Death, as it will serve as her sworn testimony!
- Notably, in that order. Debts of the estate must be paid before any distributions to heirs are made.
Originally published March 27, 2025
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
