Thomas McCutcheon

Q: Please explain what it means to probate a will or go through probate to settle estate issues.

David, Tuscumbia, AL

A: Probating a will is the legal method of settling the estate of a person who had a Will. When a person writes a Will, they leave their property to specific people or specific classes of people such as grandchildren or children who are alive at the time of death. A very common person to be the named beneficiary of an estate is a husband or wife who survives the other.

A Will can give specific property to specific people such as a Browning shotgun to a particular son or pearl necklace to a specific daughter. A Will can leave specific people out meaning that they are specifically omitted from inheriting any property owned by the person who passed away. That person is also known as the decedent or testator, if male and testatrix, if female.

Three (3) positive aspects of probating a Will are that the Will relieves the Estate of the cost of purchasing a bond. The Will speaks for the decedent and leaves their property as they wished and provides a method of transferring title and ownership of goods and property through the probate process.

The settlement of an estate recognizes that there are often debts due and owing at the time of death or created through a final illness or burial. Probate provides a limited time for claims to be filed and a method for determining their validity. Probate opens a period for claims to be made and it closes that period and claims may no longer be made after that period. That period is six months after the notice last runs in the newspaper.

The person who probates the Will is the person who is named to execute the Will by the person who made the Will. They are known as the executor or executrix. A Will may be probated within five years after death but is no longer valid after five years. A Will is probated by an attorney who files the Will for probate, notifies the heirs at law, sets a time for a reading of the Will and publishes notice of the claims period in the appropriate newspaper in general circulation in the county which the decedent resided. Although there are certain legal steps that I encourage people to take on their own such as small claims court, probate court is not a process where a non-lawyer should practice.

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