The cornerstone of Probate, leaving your estate to whomever you want, is almost paradoxical since the process is not as easy as most people think. To the great surprise of heirs that are listed in the Will, the decedent’s descendants (or next closest relatives) must be put on notice during the Probate process to validate the Will. The very concept of the requirement of placing the next of kin on notice is foreign to most clients: Why does a person’s nearest relative, who the Testator may have loathed, still have to be placed on notice of the Probate of the Will, even if that relative is being disinherited? The answer: Our estate laws allow your closest family members the right to fight the disinheritance. Yes, they may lose in court, but they are the only ones who can bring a valid lawsuit against your estate. Even more importantly, they MUST be found and informed of the Probate of your Will.
Many members of small families may not be in close contact with their nearest heirs, and may have never even met them. This tends to happen more often with foreign-born clients, loners, and people who have moved far away from the rest of their families. Using genealogists and private investigators may be very expensive but otherwise necessary. As a result, it is often significantly easier and cheaper to have the Testator’s assets pass using trusts, transfer on death accounts, and life estates or joint accounts, thereby avoiding the need to identify these heirs (not to mention subsequently serving them personally).
A more frequent issue is when addresses of the nearest heirs are not known, or when a family member within the line of succession has predeceased the Testator. For Example: If a Testator has never been married, has outlived his or her parents, had no children, and has two siblings who have children of their own, it is a good idea to state all this information in the Will, and to say where these siblings and nieces / nephews are living at that time:
I have never been married and have no children alive or deceased, naturally or adopted. My Father, Bart Starr, predeceased me in 1997, and my mother, Martha Starr, predeceased me in 2001. I am survived by my two siblings: Joseph Starr, with a current residence located at 123 Barker Street, Green Bay, WI, and Jennifer Favre, who lived somewhere in Murrayville, TX when I last spoke to her in 2006. I have no other siblings alive or deceased. Joseph has two children, Lesley Starr and Miley Starr. Jennifer has one child, Mickey Farve.
Placing this type of information in a Will benefits the Testator, the estate, the people to whom the Testator wants to leave the money and the future Probating attorney in the following ways:
- Finding these heirs becomes much easier when the Testator passes away.
- The court clerks can better identify the next of kin when comparing the Will to an heirship affidavit.
- Ensuring the Petition has all relevant information regarding distributes.
- Establishing proof of the Testator’s knowledge of the “fruits of his bounty” (I.e. closest family members otherwise entitled to his estate under Intestacy)
- Name and identify all distributees and legatees in the Will, and include their addresses, if known, in the Will.
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