ADMISSION OF THE WILL IN FORMAL PROBATE

The second step, which often occurs contemporaneously with the first, is a declaration by the probate court that the Will offered by the petitioner is the decedent’s genuine last Will. Once a court rules that the Will is the decedent’s last Will, it is “admitted to probate.”

Prior to admitting the Will to probate, the court will entertain objections by any interested party who wishes to contest the Will.

The Will may be disallowed if it can be shown that the testator (the person making the Will) lacked mental capacity, or that undue influence was exercised over the testator in making his Will.

The law generally provides that anyone of sound mind can leave his or her property to whomever he or she desires (except if the effect is to disinherit a spouse as discussed below).

However, if the court finds that the Will was fraudulently prepared or altered, that the testator was not competent, or was unduly influenced, it will invalidate the Will. If the Will is invalidated, the court will look to any previous Will prepared by the testator and consider it for admission.

If there is no prior valid Will, the decedent’s property will pass under the law of intestacy.

Shortly after your appointment as Personal Representative, you must send notice of your appointment, as well as notice of the admission of the Will, to all interested parties. The law also requires that you publish a notice to creditors (discussed in Step 4) at this time.

ADMISSION OF THE WILL IN INFORMAL PROBATE

The court clerk will examine the application, the associated papers and the Will. If the application lists everyone named in the Will as an interested party, the Will appears to be properly signed and witnessed, and all the associated papers are in order, the clerk will admit the Will to probate without a court hearing.

ADMISSION OF THE WILL IN TRUST ADMINISTRATION

Trusts need not be filed with the probate court since, absent an independent lawsuit to overturn the validity of a trust, there is no requirement that the court rule on the genuineness of a trust. If your spouse had a trust that was not fully “funded” (see “Trust Funding” in Chapter Nine), assets in his sole name must be probated. In that case, his Will would be admitted to probate and Steps One through Five pertaining to formal or informal probate would have to be followed. Your spouse’s Will would likely be a “Pour Over” Will, naming his trust as the beneficiary of his probate assets. As such, probate assets will transfer, or “pour over” into his trust to be administered according to Steps One through Five as such steps pertain to trusts.