Filing a Petition With the Probate Court & the Legal Process
The probate process follows the same general format in most states, starting with a probate petition. A probate petition is the first court filing and sets in motion probate court proceedings.
What Is a Probate Petition?
The probate petition typically consists of an application to be officially appointed as the executor, the death certificate, and the original will. A petitioner must ask the probate court to officially be appointed as the executor regardless of whether the decedent’s will has named them as an executor. Most probate courts provide a fill-in-the-blanks executor application or an example for a petitioner to follow. The application will probably ask for the decedent’s date of death, the names of surviving family members, and the names of other beneficiaries. If the state allows it, a petitioner may also be able to request independent administration of the estate or informal probate in their application. A petitioner should also confirm whether the original will has already been filed with the court. A court may accept electronic or mail petitions for probate, but it may be helpful to go in person to confirm with the court clerk that the petition is correct.
Where to File a Probate Petition
A probate petition is usually filed in the county where the decedent lived when they died. If it is unclear where the decedent was permanently living when they died, a petitioner can check the will, although it is possible that the decedent wrote their will in one county and subsequently moved to a different county. In that case, a petitioner can consider other evidence, such as where the decedent owned property, where they kept bank accounts, or where they were registered to vote.
The Probate Petition Hearing
The first hearing that a court will hold after a petitioner files a probate petition will be to officially appoint an executor. A petitioner will most likely be responsible for sending formal legal notices to any beneficiaries or other heirs about the date and time of the hearing. They may also be required to notify any creditors or other interested parties and publish a notice in the newspaper to reach unidentified parties. During the hearing, any interested party may object to the petition. If no party files an objection, a petitioner may be appointed as the executor without appearing at the hearing, although a petitioner should consult with a lawyer or court clerk to determine if their appearance is necessary. If the court approves the petition, it will issue documents authorizing the petitioner to act as the executor. These documents are sometimes called "Letters of Authority," "Letters Testamentary," or "Letters of Administration." The documents will also include an order opening the probate case.
