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What Is the Difference Between Will and Probate?

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If you plan on creating a Will for yourself or you recently lost a loved one that left a Will, then you must be on the lookout for a Will lawyer to help you deal with the legal proceedings. You might have also heard the term “probate” by now.

 If you’re new to all of this, then you’ll need some help to understand the difference between a Will and Probate. Before you hire a probate lawyer, keep reading this article to gain a better understanding of the basic terms and their differences.  

What is a Will? 

A Will is a legal document written by a person during their lifetime. It is an important document because it allows you to legally declare your Beneficiaries. These are the people who will inherit your estate, i.e., your money, possessions, and assets after you pass away.  

Creating a Will also enables you to determine specific actions and arrangements that you want to occur after you die. For instance, you can choose your executors, who will be responsible for making the arrangements regarding the distribution of your wealth as per your Will.

If you have children under the age of 18, you can use your Will to name legal guardians for them. Moreover, you can also mention your funeral preferences, such as choosing to be cremated or buried, etc.    

If a person dies without a Will, they are referred to as “intestate”. In that case, the family members of the deceased inherit the estate. The law decides the terms for distribution that specify who gets what. 

What is Probate?

Probate is a legal proceeding that takes place after a person dies. The Probate provides a person or multiple people the legal authority to deal with a person’s estate after they have died. Probate is usually done in cases where the deceased didn’t leave a Will. The people who are given the legal authority with a Probate are called Personal Representatives.  

With Probate, the Personal Representatives get access to the deceased estate, including their bank accounts, belongings, property, pensions, etc. They can use these things to perform the following actions:  

  • Sell or transfer property.
  • Pay final utility bills.
  • Gather all the assets, including stock shares, pensions,  and savings
  • Distribute or sell all the assets
  • Pay outstanding debts 
  • Pay any remaining income tax or inheritance tax. 
  • Distribute the Estate to beneficiaries as per the Will or the law

Keep in mind that there is no legal requirement to apply for Probate. It is only an option to ensure that the deceased estate is administered effectively and distributed to its beneficiaries without much delay.

The common cases where a Probate isn’t necessary to include: 

  • When the deceased spouse is still alive, in that case, the jointly owned estate will automatically transfer to the living spouse. 
  • The estate is very small.

Difference between Will and Probate

Having a Will is not the same as having a Probate. A Will is written by a person during their lifetime to record their wishes and preferences concerning their estate and beneficiaries, while a Probate is obtained by Personal Representatives to take action on the deceased’s behalf to distribute their estate. 

Regardless of whether the deceased left a Will or not, a Probate can be used in both conditions. Some people believe that if their loved one left a Will, there might not be a need for Probate. However, a Probate determines Personal Representatives that take the responsibility of distributing the deceased’s estate as per their wishes mentioned in the Will. 

In the case that there is no Will, a Probate will enable Personal Representatives to take action regarding the distribution of the deceased’s estate in accordance with the law. 

Conclusion

The matters of distribution of the estate can be quite tricky, with or without a Will. Hiring a Probate lawyer provides you the opportunity to acquire legal authority to be responsible for the distribution in accordance with the Will of the deceased or the law.  

If you’re looking for a Will or Probate lawyer, then contact our highly experienced and professional team at Chamberlains!