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What is probate?

Probate - what is it? Much has been said on the Pittsburgh Elder Law Blog about the importance of creating a valid Will. Probate is the process through which the decedent's Last Will and Testament is filed of record with the Register of Wills office and authenticated. If the Will has been witnessed, usually by two (2) people, the witnesses may have to come in to authenticate the decedent's signature or to sign Affidavits and have them notarized. However, if the Will has been notarized, it is "self-proving," which means that the witnesses do not have to appear or execute Affidavits. Letters Testamentary are then issued by the Register of Wills to the Executor or Executrix named in the Last Will and Testament.

If there is no Will, Letters of Administration are granted by the Register of Wills. However, state law determines who has the right to seek such letters, such as a spouse, adult children, parents, siblings, etc.

Shortly after someone has passed away, whoever is in possession of the decedent's Will should contact the Executor or Executrix and an experienced estate attorney to probate the Will. The petition probate and grant of letters is filed along with the original Last Will and Testament and a death certificate. If the Will is not notarized, either the witnesses need to be present when the Will is offered for probate or the Affidavits must be filed. This process is usually quick.

When there is no Will and no spouse, for example, all the adult children of the decedent have an equal right to serve as Administrator. They would all have to appear to be sworn in at the same time. Some of them could renounce, or give up, their right to serve as a Co-Administrator. Otherwise, it could be difficult to have an estate with 7 Co-Administrators if the decedent had 7 grown children. Sometimes, a hearing is required to determine who will be appointed as the Co-Administrators, which can increase the time to open an Estate.

The death of a loved one can cause difficulty to family members. The last thing they want to do is spend their time in court determining who should be appointed if there is no Will. It is better to engage in estate planning to help avoid this turmoil for family members.

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