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Probate Estates: Starting the Probate Process

07th January 2011
By Jakub Bednar in Estate Planning
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Probate refers to two things. One is the process of submitting a deceasedís last Will to the court. If the Will is proved valid, the court grants an order of probate (admitting the document as the decedentís valid Last Will and Testament. The other meaning refers to the process of collecting, managing and distributing the Probate Estate assets (whether in accordance with the Will or intestacy).

Finding the Will

The first step is to find out whether the decedent left a Will. You can look in various places such as the safe, filing cabinet or other places in their home where documents are stored. Keep an eye out for deposit receipts just in case the testator deposited the Will somewhere else.

If you cannot find their Will at home, try the testatorís attorney, safe deposit box or even the probate court in their county. Some courts allow Wills to be deposited or recorded in a registry.

Submitting the Will for Probate

Once you find the original Will, you need to submit it to the court for approval. If there is more than one, submit the latest Will if the former has been revoked by the latter. To do this, you need to obtain a petition for probate and file it with the appropriate county court. This is generally the county where the decedent was last domiciled (had residence) immediately prior to death.

The probate petition requires details of the deceased, the last will and testament, a death certificate and the names and addresses of all beneficiaries and heirs. The application for appointment of a personal representative is usually contained in the probate petition, but can be a separate form.

Type of Probate Application

Many states offer simplified probate procedures for small estates. This enables transfer of probate property simply by using a small estates affidavit. †The threshold is usually estates worth $15,000 or less and generally applies for personal property only.

Many jurisdictions have also adopted the uniform probate code, which offers different requirements for informal probate and formal testacy proceedings. Informal probate can be used in most probate situations. Sometimes there is a value threshold. This process does not require notice to be given prior to probate. Formal testacy proceedings apply where the Will has been lost or destroyed or where the Will is being contested. This process is more technical and formal and requires notice before the hearing.

To see which procedures are available in your jurisdiction and to obtain the relevant forms, contact the probate court or county clerkís office. Alternatively, some courts have these documents available online. Make sure you read the instructions carefully and complete the form accurately. Note that many states restrict who can apply for probate. Ensure you are one of the eligible persons to sign the petition. Remember you can hire an attorney to assist you.

Proving the Will

The court requires some form of witness testimony in order to prove that the Will was executed properly and without any fraud or undue influence. Many states allow a last will and testament to be self-proved. Where the Will has self-proving affidavits, usually this is all thatís required in the form of witness testimony. Where no such affidavits have been signed, the court requires testimony from at least one of the attesting witnesses. This is typically accepted in writing by affidavit witnessed by the court. There are alternative methods where all witnesses reside outside the state, have died or cannot be located.

Appointing a Personal Representative

After the Will is accepted or once it is determined that the decedent died intestate (without a Will), the court needs to appoint a personal representative. This is the person who manages the estate, gathers the assets, makes distributions and reports back to the court.

If the Will names an executor, this person will be appointed, unless they are disqualified or waive their right to act. Where the Will is rejected or does not name an executor, the court appoints an administrator in accordance with the relevant probate statute or code. The order of priority is set out in the statute.

If there is a Will, the formal appointment is called letters of administration with the will annexed. Where the testator died intestate, the appointment is simply referred to as letters of administration. A bond or security is typically required. The Will can dispense with this requirement.

When applying for probate, remember to research your options carefully. Thereís no need to apply for informal probate if you can have the estate settled with a small estate affidavit. If you become stuck, contact the probate court or seek advice from an attorney.

For more information on starting a Probate Estate in your state visit
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