Probate Law

Role of Lawyers in Probate of Wills, Appointment of Guardians

Probate of Will is a legal term meaning the official recording of a person’s last will and testament, said Alpharetta, GA probate attorney. Probate usually refers to a last will and testament which are prepared by an attorney for the deceased person’s estate. Probate of Will refers to the recording of the testament or last will and testament of the decedent. The term ‘probate’ can also mean that the state has issued a probate court order.

Alpharetta, GA probate attorney

Probate means the recording of a person’s last will and testament duly acknowledged and recorded in the Probate Court of the county where the decedent resided. Probate of Will can also be referred as’appointing’ or’appointing executors’. Probate court is a court of general jurisdiction whose jurisdiction is limited to cases within its jurisdiction. Therefore, Probate of Will is the court of law where the process of election of will and execution takes place. A probate court is the place where probate of Will proceedings are held. The procedure of Probate of Will varies from state to state; hence, services of a probate lawyer is necessary if not indispensable.

In the case of a Will there are certain specific instructions provided for its preparation and recording, which have been set forth in the previous paragraphs. Before Probate Court, the attorneys for the parties are required to submit certain matters as evidence to prove that the decedent did not make any express wishes as regards the disposition of his/her property or that any instructions as to the disposition thereof have been neglected by the decedent. Among these matters submitted to the Probate Court are copies of any letters, trust deeds, mortgages, deeds of trust or any records of taxes paid by the decedent. In some states, it is also necessary to submit copies of IRS returns or any other financial statements addressed to the trustee of an estate for probate of Will.

After preparing and submitting the requisite documents, the attorneys for both parties to present their cases and the judge or the court clerk read the recorded order duly acknowledged by both the attorneys. Then the clerk, while reading the order, will announce to the jury who are called there by the judge, the names of the witnesses that will be called to testify regarding the subject of the Will. These witnesses are called ‘affiliates’. They are either sworn or affirm; or may be either the actual testators or their agents. The witnesses are then asked to give their testimony regarding the facts that are set down in the recorded Will. After the entire testimony of these witnesses has been given, the court will announce the verdict and delivery of the probate court order granting the deceased’s personage and powers to the next named in the Will if there are no beneficiaries.

Thereafter, the court will deliver the probated estate to the appointed administrator of Probate, who is either the executrix or administrator. If there are no appointees, the next step is to determine whether the Will has been properly executed in conformity with the law of probate. Thereafter, the court will again enter its judgment as regards the fulfillment of probate laws in view of the recording of probate instrument and the delivery of probate instruments to the next named in the Will. This process of delivery of probate instruments and judicial proceedings will follow the manner prescribed by law.

A probate of Will that is properly executed and recorded under the provisions of New Jersey probate law and in compliance with the terms and provisions of Probate Code Sections could result in the assets of the decedent being distributed as specified in the Will if there are no beneficiaries. In other words, the probated estate shall be distributed as provided in the Will if there are no legitimate beneficiaries and such distribution is in accordance with the terms of New Jersey probate law. However, the probate court in New Jersey may order distribution of an asset to a known beneficiary if it is established that the decedent was not actually dead when the Will was executed. If distribution is required under any provision of Probate Code, the beneficiaries will be identified as stated in the document and the beneficiaries shall be paid the amount specified in the Will without their action having to be under the discretionary jurisdiction of the attorney general. No part of the Will should be contingent upon the wishes of any beneficiary.