LEGAL PERSPECTIVE: Probate of Wills by Dr. AbdelGadir Warsama, Legal Counsel

Probate is the process of proving or establishing validity of wills. First step is to determine whether or not the deceased made a will. The executor, files a petition to the Court to declare the will valid and operative. This Court is called “Probate Court” and the petition contains info about the will, the testator and attach the will and affidavits of witnesses stating that they witnessed the will. Courts may order the appearance of witnesses to testify that they witnessed the signing. Related parties are called for hearing, after which the Court declares the will valid. Then the executor named in the will receives official permission to act. The will is then said to have been probated. After probate, the estate of the deceased is administered, the assets located, identified, and then valued. An expert may be hired for valuation. To give notice to insurance companies, taxation, and social security administration, to decide on benefits and debts for payment.

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Distribution pursuant to a will may involve problems even though the will provisions are clear and valid. Example, after payment of taxes or others there may be insufficient funds to pay all bequests in full. Such cases result in what is known as (abated bequests), means bequests are decreased according to formulas in the law. Or a will contains a bequest of specific item, but the item is sold prior to death. In this event, the bequest is considered an (adeemed bequest), cancelled. Or a beneficiary in a will predeceases the testator and there is no provision in the will for an alternate. Anti-lapse laws, in most countries, provide that the bequest to the deceased beneficiary does not lapse, the children or heirs take the bequest to which their deceased ancestor was entitled. The laws differ on how close a relationship must have existed between the deceased beneficiary and the heirs for the anti-lapse provisions to apply. The final step in administrating an estate is called, settlement. After all assets have been collected, debts taxes paid, the executor distributes the remaining assets according to the instructions in the will. In addition, the executor commission, expenses, and legal fees are paid by the estate. When these steps have been completed, the estate is considered settled. Sometimes an estate can be settled without Court supervision. Herein, the estate property is distributed and beneficiaries file receipts for their gifts.

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