What is a Will and What is Not a Will

Posted by David Heller on June 17, 2021

A will, in an extreme oversimplification, is a document that directs who gets your assets when you die. It also appoints the person who is in charge of this process. This person is normally referred to as the “personal representative”. It used to be called either an “executor”, which is the male title, or “executrix”, which is the female title. Now, it is just simply the personal representative.

While the client is alive, the will has essentially no legal authority. It is really little more than pieces of paper that direct how the decedent’s estate is to be administered and distributed after death. But, until the will is probated, no estate exists.

In order for the will to become probated and have authority over the client’s estate, (1) the client must be deceased (stating the obvious), and (2) a court must accept the will into probate. The court accepts the will into probate through a court proceeding. At the proceeding, the court establishes that (1) the will was properly executed, (2) it is the decedent’s most recently executed will, and (3) the person appointed in the will agrees to serve as the personal representative. If the person appointed does not agree to serve, the court can appoint a person of its choosing. This is usually a local attorney experienced in the probate process.

The probate proceeding should be done in the county where the decedent had his/her primary residence. The personal representative has the authority to deal with the decedent’s assets wherever they reside except real property the decedent owns in a different state. The personal representative is responsible for gathering the client’s probate assets together, identifying outstanding bills that need to be paid, filing final tax returns, and then finally distributing the remaining assets as directed by the will. The probate process rarely takes less than six months, but could extend for several years — especially if there are disagreements among the beneficiaries.

To handle the real property in a different state, the personal representative must have an additional court proceeding in that state where the real property resides. This additional process is referred to as ancillary probate. Through the ancillary probate process, the personal representative is formally recognized by that other state to deal with the client’s real property located there. Doing probate in one state does not automatically carry to another state.

The result of the probate hearing is that the client’s estate has been opened and the personal representative is appointed. From this, the personal representative receives the letters testamentary from the court. The letters testamentary is an official court document given to the personal representative stating that he/she has the legal authority to handle the decedent’s estate. With the letters testamentary, the personal representative is now recognized as the legal authority to handle the client’s estate administration.

If you have any questions or comments about this topic, please do not hesitate to contact the estate planning lawyers at Martin Heller Potempa & Sheppard, PLLC.

arrow-up