Probate is the procedure which determines whether or not a will was properly drawn and executed and is the genuine instrument setting forth the wishes and directions of its maker for the disposition of his or her property. In spite of a flood of books and articles constantly demonizing probate and offering us a myriad of ways to avoid it, probate helps to insure that your plans for the disposition of your estate will, in fact, be honored after your death.

The probate process usually begins with the attorney for the executor named in the will filing the original, ink-signed will with the clerk of the Surrogate’s Court together with a formal petition which fully identifies the executor, the individuals named to receive bequests under the will (legatees) and all of those relatives of the decedent who have a right to object to the will and who would benefit if it were not admitted to probate. The petition also contains a brief description and evaluation of the estate’s assets and fully identifies the witnesses to the will.

Incidentally, when the will is filed, the clerks go so far as to carefully examine the physical appearance of the instrument and even match the staple perforations to the staples in the will. Any perforations without staples are circled in red and an explanation must often be provided as to why there are more perforations than staples. This helps to insure that no one has tampered with the original will.

Before the court reviews the documents submitted to it by the executor’s lawyer, it must be satisfied that all interested parties to the will have received appropriate notice of the proceedings. Usually, notice is provided by mailing a certified copy of the will together with an explanatory letter and a legal document consenting to the admission of the will which an interested party may sign and have notarized in order to save the estate time and money when he or she is in favor of the petition. If one does not agree and fails to sign and return the consent, the court’s probate clerk will issue a citation which informs the party upon whom it is personally served as to the date, time and place when the petition will be submitted to the court for a decree admitting the will to probate.

Sometimes, it is not possible to locate an heir or other interested party who must be notified of a probate proceeding before it may continue. In such cases, the court requires proof that an extensive search has failed to locate that person and may then permit service of the citation on them by publication in a local newspaper.

Once the necessary parties are all located and served with notice of the proceeding, and if there are no objections,the will may be admitted to probate and the executor appointed as the estate’s legal representative so that the instructions set forth in the will may be carried out with the supervision of the court. If any interested party objects to the will, the law provides for the examination under oath of the witnesses to the will, the attorney draftsperson and other necessary parties. Discovery proceedings are available to uncover important facts and circumstances surrounding the making of the will. Ultimately,if warring parties do not settle their differences, a trial may be held –by jury if any party demands– to determine whether or not the will was genuine. If the petition is denied and the will is not admitted to probate, then the latest prior will may be considered. If there are no other wills, the estate will pass by intestacy in equal shares to the class of relatives closest in kinship to the deceased as provided for by the law.

While this may seem like an expensive, unneccessary and difficult way to go, remember that the one person who could have provided an answer to all of the questions raised can no longer speak for him or herself and it is the final wishes of that very individual we are trying to carry out. Also keep in mind that some folks are unscrupulous when it comes to large sums of money and will do the darndest things to get their hands on it. Forgeries and falsified records do occur from time to time and , if successful, will frustrate the proper distribution of the assets of the estate.

For all of the challenges posed by a probate proceeding, it insures that all parties who must have notice will get it so that they may have the opportunity to raise objections. It also provides the best possible way of insuring that the actual wishes of the deceased will be honored.