Probate law is designed to ensure that the assets of the deceased are distributed to the persons or entities designated by the deceased in his or her estate planning documents, or if there were no such documents, to his or her legal heirs. A probate proceeding is public, heavily supervised by the responsible probate court, and often time consuming.
When someone dies, a probate proceeding is NOT automatically started! Someone — an executor named in the will, a relative, or an interested party – has to notify the probate court, submit the death certificate, and commence the proceeding. Surviving relatives of the deceased should make sure a probate proceeding is begun without delay; otherwise, the more time that is allowed to pass, the greater the likelihood that the assets will be dissipated or stolen.
A probate proceeding can be quite simple if the deceased had few assets and/or if he or she set up a trust rather than a will as the main estate planning, or can be very complex if the deceased had a lot of wealth and no trust, had a variety of assets in different jurisdictions, or had many children by different marriages. Uncertainty regarding the existence or revocation of a will, a defectively executed will, and uncertainty about next of kin, also can complicate matters.
One question that arises fairly frequently (when someone is unpleasantly surprised by what is in a will) is whether a will can be set aside because the deceased was under undue influence of someone else when the will was executed. The answer is usually “no”; if the will reflected the desire of the deceased at the time it was signed – even if the deceased was unduly influenced by a relative or friend – chances are it cannot be set aside.
Most people, even those of us who have modest assets and simple desires regarding what should happen to them, prefer to have an estate plan in place well in advance. Nonetheless, it is not unusual for us to provide estate planning services in the waning hours of life, followed by (coordinated) probate services therafter.