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Should you probate your relative’s will?

By Chesley Payne

I am often contacted by people who have a recently deceased family member who want to know whether it is necessary to probate the will.

That answer often depends on whether the deceased had any assets. In most cases where the answer is yes, probating the will is highly advisable as doing so will allow the personal representative — also called an executor — to receive letters of administration that will allow them to carry out those tasks called for in disbursing assets to the heirs named in the will and deal with any creditors of the deceased.

Probating the will can often provide legal protection for the personal representative, as any action taken by the personal representative will not be seen as actions taken by that individual, but as a representative of the estate.

Another scenario in which probating the will is advisable is when family members are in a dispute as to assets of the deceased. Unless the will is specific, a personal representative has a large amount of discretion in how the assets of the estate are to be handled. The personal representative often has the ability to dispose of assets in a manner that would override the wishes of warring family members.

Further, in the event the deceased owned real estate, the personal representative is able to dispose of the real estate to avoid any potential long-term complications, such as issues involving family members who may hold an heirship interest unknown to everyone in the family. Also, mortgage companies often require that a personal representative be appointed before they will speak with anyone but the deceased.

The death of a family member is a sad event. Don’t compound this loss by making a mistake when it comes to the distribution or liquidation of their property. Contact an attorney to assist you to ensure a smooth transition that will benefit you and your family.

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