Commonly Asked Estate Planning Questions- Day Two
What is Probate?
The formal definition is the process by which an estate is formally established for a decedent and representatives are appointed to handle the decedent’s affairs. Probate is not always necessary. Depending on the nature of the asset, some can transfer outside of the probate process. These assets are generally assets that are jointly titled with right of survivorship or assets that contain beneficiary designations. If you are unsure how your assets will transfer, it is important to speak with an attorney. Check back on the Lancaster Law Blog in a few weeks for more information on the probate process and whether it is necessary to avoid it.
What happens if I lose my Will?
The short answer is DON’T! But in all seriousness, life happens and accidents happen. Wills can be misplaced, written on, or destroyed. I try to emphasize to my clients the importance of keeping your documents in a safe place, see yesterday’s post for more. But what happens if you have tried to keep it safe, and a freak asteroid comes along and destroys your Will? Well if you were lucky enough to be standing anywhere other than where the asteroid hit and you have capacity, I highly suggest redrafting your Will. Remember you can always redo your Will so long as you have capacity to do so. If you happen to be holding your Will when the asteroid hit, well, you obviously won’t be redoing it. At that point, hopefully a copy of the Will exists. That is the first hurdle. I say hurdle because probating a copy is not an easy process. The person or people trying to submit the copy to probate must prove that the copy is the same as the lost Will. This can be done with two competent witnesses attesting to the execution and contents of the Will. This process can take a while and involves a hearing.
So do your best to keep your Will in a safe place, but if it is destroyed or misplaced, it’s not the end of the world. As for the asteroid, I guess that will depend on the circumstances.