The Probate Process - Module 2 of 5

The Probate Process

Overview of the Initial Probate Steps

At the outset of an estate administration process, the family, beneficiaries, nominated executor or other interested person should review the decedent’s files, mail, bank and financial assets and other papers to determine the extent and location of the decedent’s assets and liabilities. If there is a will, it should be read and the beneficiaries noted, along with the names of all nominated executors and whether any trusts are referenced. This information is important for the choice of type of probate administration to be opened and the later drafting of documents to be filed with the court.

All still-valid original will must be filed with the appropriate court or registry, and copies should be kept by the interested party or nominated executor.

If the deceased person owned assets that must be probated, the next step is to open a probate proceeding in the county of domicile where the will was filed. While the process of opening a probate varies from state to state, the process generally involves:

1. Filing an appropriate petition to open the estate and to probate the will, along with any other required documents, fees and proposed orders;

2. Filing a petition for appointment of executor and to obtain letters of office (often called “letters testamentary” or “letters of administration”);

3. Sending notice to all interested parties as required by state law, including family and beneficiaries or obtaining waivers of notice and hearing;

4. Appointing a guardian ad litem for incompetent persons; and

5. Holding a hearing at which people can air will challenges or other grievances. If every interested person has waived the right to a hearing or consented to the probate, a hearing may not be necessary.

Let’s look at these steps, in turn.

The Probate Petition  

Every estate is initially opened with a petition or application to administer the estate, filed with the probate court in the state and county of domicile, along with a request to probate. The petition must be submitted with the will (if not already filed) and the death certificate.[1] The petitions must be filed within the time required by law.[2] Although a petition to open an estate may be filed by any person with an interest in the estate,[3] most petitions are filed by a nominated executor in the will, or the spouse of the deceased person (if the nominated executor is unavailable or in an intestate estate) or other family member or heir.[4] If nobody else files (perhaps because the estate is too small to be worth anyone’s time, money and effort), a creditor of the deceased person may open the estate.[5]

Given the complexity of administering an estate, many courts recommend hiring an attorney, especially for a formal or supervised proceeding.[6] Some states even require an attorney to open the estate proceeding (usually, for a formal or supervised proceeding).[7] 

The form of the petition is determined by the type of estate needed. For decedents with limited assets, a small or simplified estate proceeding may be appropriate. This may be limited to estates with a single type of property and/or under a certain value, such as California’s Affidavit for Transfer of Personal Property Worth $150,000 or Less, which allows a beneficiary, guardian or conservator of the estate to file an affidavit for transfer.[8] Other documents that may be required to open a small estate include a death certificate, certificate of filing the will, identification and a paid funeral bill.[9]

There may be circumstances when a petition for a small estate will not be appropriate, even if the value or type of assets “fit” the requirements of law, such as when the will is contested or can’t be found, when an objection is filed to the small estate proceeding or when an executor without priority is requesting appointment.[10] In such cases, and in all cases where the estate is such that the small or informal estate process is not appropriate, a petition for formal or supervised administration and appointment of executor must be filed.

To open a formal or supervised probate, various documents may be required, including a death certificate, affidavit of domicile and a list of heirs and beneficiaries under the will and testamentary trusts. Other documents may be required; for example, South Carolina requires payment of an advertising fee, submission of deeds to all South Carolina property, and, for those requesting appointment as executor, renunciations or consents from other people of equal priority to serve.[11]  

Many states allow wills to be “self-proving,” where the witnesses sign a statement contemporaneously to the signing of the will, stating that the will was executed in compliance with all will formalities. This is known as a “self-proving affidavit.” If there is no self-proving affidavit, the witnesses to the will must testify or submit affidavits to the court, that they saw the deceased person execute the will, that he was of sound mind at the time of signing and that the witnesses were present and at least 18 years old at the time of signing.[12]  

Courts will often request that a filer submit proposed orders, including an order admitting the will to probate and appointing an executor. The filing fee must be paid. The fee amount varies by state and by the type of probate requested.[13]

State courts often have self-help centers or online forms that laypeople can use to administer estates.[14]

Requesting Appointment as Executor

Generally, a small estate proceeding is opened by a spouse, intestate heirs or the beneficiaries of a will, without the appointment of an executor.

In a formal, supervised, or larger estate, a person requesting appointment as executor must file a request for appointment, either in conjunction with the petition or as a separate document (such as when the probate was previously opened by another party).[15] The request for appointment should include information such as:

1. the names and addresses of each of the decedent’s heirs, identifying whether each one is a minor or has a disability and identifying whether there are other potential administrators with equal or greater preference than the petitioner;

2. the name and mailing address of the person nominated as administrator;

3. the facts evidencing the right of the petitioner to act as administrator or nominate an administrator.[16]

The person requesting appointment must sign and file an oath or an acceptance of office, agreeing to serve as the executor of the estate and to perform the duties the law requires. Executors must submit themselves personally to the jurisdiction of the court in any proceeding relating to the estate that may be filed by any interested person,[17] such as will contests or objections to the executor’s handling of the estate.

An executor may be required to post a bond prior to receiving letters of authority to act. This bond can be waived (or required) by the will.[18] Some state probate rules provide that regardless of whether bond is waived, it remains within the court’s discretion to require a bond.[19] The bond is designed to protect the estate, and the amount of bond is typically tied to the value of the estate.[20]

Notice and Waivers

Notice of commencement of any legal action, including probate matters, must be sent to all interested parties as required by state law. Notice of the filing of a will, for instance, informs those who have interests in the estate that a will has been offered for probate, and advises them that they must contest the will, if at all, within the time allowed by law.[21] Notice of a smaller or unsupervised estate proceeding also usually must be given to the statutory heirs or beneficiaries of the will and creditors, informing them of the existence of the estate and the right to object.[22]

Similarly, when a formal estate is opened and a request for appointment as executor is filed, notice informs interested parties of their rights to receive information about the assets of the estate, to object to the appointment of the executor, or to file claims against the estate, within the time allowed by law.

Those entitled to notice may include:

·         A surviving spouse;

·         Children;

·         Heirs (as determined by state law);

·         Beneficiaries of the will, including charities;

·         Trustees of any trusts established by the deceased person, or under which the deceased person was a beneficiary; and

·         Any person having a higher or equal right to appointment as executor.[23]

State law or the court may require notice to be given to other interested parties, such as the state’s Department of Revenue or Taxation or state Attorney General’s office.[24]

Notice is generally given by first class mail or by personally delivering a copy to each person or entity interested in the estate.[25] Notice may also be required to be posted in the legal notices section of a newspaper of general circulation, preferably in the city where the decedent resided. Proof of mailing and publication must be filed with the probate court.[26] 

Interested parties may waive their right to notice, along with their right to a hearing and to contest the will.[27] Waivers of notice should be signed and notarized by the beneficiaries and filed with the court. If all necessary parties sign waivers, the jurisdiction of the court is completed, and a hearing may be dispensed with. Beneficiaries who do not sign waivers may be issued citations to appear at a probate court hearing to tell the court that it expects to contest the will or appointment.[28]

If a notified person does not contest the will at or before the hearing, this may be considered consent. Alternatively, a court may give beneficiaries or heirs a limited time to challenge the will. For example, Florida requires “any objection that challenges the validity of the will, the venue, or the jurisdiction of the court” to be filed within three months of receipt of the notice.[29]

In New Jersey, one who resides in the same state as the deceased person only has four months after a will has been admitted to probate to contest its validity, while an out-of-state party may commence a will contest up to six months after it has been admitted to probate. The court, in its discretion, may grant a 30-day extension upon showing of good cause.[30]

Guardians ad Litem

Where an interested party to an estate is a disabled adult or minor child, a court may appoint, or a third party may petition the court to appoint, a guardian ad litem to represent the beneficiary’s interests.[31] A guardian ad litem serves as the eyes and ears of the court in representing the incompetent person’s interests.

For example, in one Illinois Supreme Court case, the issue was whether a mark on a will document was that of the testator and whether the attestation of the decedent’s mark as a signature was proper. One of the heirs of the decedent was a minor. The court ruled that because the minor had an interest in the will contest proceedings, she was properly a party to the will contest and the court was required to appoint a guardian ad litem to protect her interests.[32]

Unlike a legal guardian, who is responsible for the physical care or well-being of a person in addition to representing the incompetent person’s best interests, the guardian ad litem’s role is much more limited in scope. The probate guardian ad litem is only responsible for protecting the beneficiary’s interest in the estate. The guardian ad litem also serves as an advocate, where necessary.[33]

Guardians ad litem can also be appointed to represent the interests of people who are currently unknown, but may have future interests established through a will document or a trust, such as afterborn children or grandchildren of those who cannot be located.[34]

Most states require the probate guardian ad litem to be an attorney licensed to practice law in the state, often one who is familiar with probate law.[35] Other states may allow laypeople to serve.[36] Guardians ad litem may be required to attend training specific for the role or have other qualifications, as appropriate.[37]

The guardian ad litem’s duties may include:

1.            Reviewing the documents filed in the probate court;

2.            Explaining to the disabled adult or minor child the nature, purpose, and legal effect of the proceeding and the issues that may arise;

3.            Explaining any court procedures or hearings, including the right to contest the will or petition and to be represented by legal counsel;

4.            Interviewing other heirs or beneficiaries, people seeking appointment as executor, creditors and attorneys with regard to any matters before the court; and

5.            Making determinations on matters before the court and informing the court of those determinations in an official report.[38]

A guardian ad litem is typically entitled to reasonable compensation, to be paid as part of the estate administration costs, in keeping with the rules of the state or court in which they are appointed.[39]

The Hearing

Once the will, witness affidavits, petitions are filed, notice is given to all interested parties and proof of notice or waivers filed with the court, the time allowed by law for filing will contests or objections has passed and a guardian ad litem has been appointed for any incompetent persons, the court is ready to consider the will and petitions.

In a small or simplified estate, a hearing may not be required to admit the will and open the probate. Small estate procedures may be sufficient,[40] although some courts require hearings even for simplified estates.[41] In addition, a hearing may not be required where all interested parties have submitted waivers.[42]

Where a hearing is not required, the court will issue an order admitting the will to probate or opening a probate administration without a will. If the request for appointment as executor is approved, the court will issue letters of office, often called Letters Testamentary or Letters of Administration, signed by the probate judge, which represent the appointed executor’s authority to act on behalf of the estate.  

If a hearing is required, all parties must be present- in person or by telephone, where allowed- or represented by counsel. The hearing provides the court with a venue to hear additional information from all parties, especially any contested matters. Witnesses to the will may be required to testify as to their knowledge of the circumstances of the will’s execution. Parties objecting to the will may state their desires to contest the will. Anyone objecting to the appointment of the executor (including anyone with priority over the person requesting appointment) can present their cases to the court.[43]

            If trials need to be held to determine the validity of the will or any other contested issue, the court will schedule the trial and the probate is put on hold, perhaps for months, while the underlying issues are sorted out. The court can, though, issue temporary authority for an administrator to take certain emergency actions, such as filing for and paying taxes or defending lawsuits brought against the estate.

The issuance of orders and letters of authority allow the appointed person to begin officially gathering assets, paying debts[44] and distributing the estate. In our next module, we will look at these processes of administering the estate.