Discuss the probate of a will. What is involved? What public office is used? Why should there be a delay? Must a lawyer be used? When property and assets are jointly held, is a probate of will necessary? - A.B., Greensboro.\
Wills are probated with the clerk of court in the county where the deceased person lived. In times past, the will maker's signature had to be proved by witnesses before the clerk, but, since 1977, most wills are ``self-proving' - that is, the testator and witnesses sign the will in the presence of a notary and do not have to go to court to authenticate the signature.
According to John Swink, a trust officer with Wachovia Bank in Greensboro, the 1977 changes in the state's laws governing wills significantly reduced the amount of time required to probate a will. Wills not executed under the self-proving statute still require the original witnesses to go to the clerk's office, a process that can cause significant delays in appointment of an executor.Individuals serving as executor or executrix may settle estates without an attorney, but, said Swink, ``I strongly recommend anyone serving as an executor employ an attorney to insure proper handling of the estate and to protect the individual from any personal liability resulting from an improperly handled estate.'
There are several forms of joint ownership. Assets held jointly with right of survivorship will automatically pass to the survivor regardless of the terms of the will. But assets held as tenants in common will not and instead will be distributed according to the will provision.
An asset frequently held jointly with right of survivorship is a joint bank account of a husband and wife.
Upon the death of one spouse, the surviving spouse automatically is entitled to the full amount in the account.
A tenancy in common, however, involves property co-owned with another person, such as a relative or a business partner.
In such instances, what happens to the decedent's share will be controlled by the will.
While joint tenancy with rights of survivorship is an easy way to avoid probate proceedings, it should not be a substitute for a will.\