When a loved one dies, you must distribute their assets as directed by the will. If no will is found, you must follow state law. Either way, you’ll need to file the will with the county court as well as a petition to open probate.
The Need for Probate of an Estate
Probate is a legal process where the court oversees the dispersal of the assets and payment of any debts for the deceased person. Probate isn’t always needed when someone dies, but it’s required most of the time. Whether probate is necessary depends on state law, which can vary by state. Much of the time, the law allows for certain estates to bypass probate as long as they don’t exceed a certain dollar amount in value. Some states allow for informal probate, which means the executor of the estate takes care of most tasks without direct approval of the court. In other cases, an affidavit may be used in place of probate.
For other estates, they must go through probate before the heirs can receive ownership of the assets. If all assets are part of a living trust, probate won’t be necessary. The same situation occurs if all the assets have listed beneficiaries. Anyone who is the executor of an estate or the personal representative can talk to an estate attorney to find out if their estate must go through probate.
What It Means to File a Petition for Probate
If it’s determined that the estate must go through probate, you’ll need to file a petition for probate to be opened. This means the court is made aware of the situation and will approve or appoint someone to oversee the distribution of the estate.
Filing a petition requires certain steps to be followed and probate recorded in the court’s records. Before anything else can be done, someone must file for probate.
Step One – File the Will
The first step which must be done when someone dies is to find the will and file it with the court. It doesn’t matter if the estate must go through probate. If a will exists, it must be presented to the court when the person dies.
To file the will, you will submit it to the court in the county where the person lived. At the same time, you would fill out a form asking that probate be opened. Much of the time, you will go to the court clerk, which handles civil, criminal and probate matters. Some locations have a separate probate court where you will submit your form.
Step 2 – Decide on an Executor
Someone will need to be the executor or personal representative of the estate. If the will named a person, they have the option to accept or reject the position. If no one was named in the will or no will exists, someone can offer to act as the personal representative. In either case, the court must accept the request.
If you don’t live in the state where probate must take place, you’ll need to find out whether you can act as executor. Some states require the person to be a resident of that state. Some states also require an attorney to be the executor. If you’re not sure of the requirements for the state where the deceased person lived, you can contact an estate attorney for answers.
Step 3 – Have the Form Notarized
The court requires that the form to petition for probate be notarized. Yu will need to find a notary public before you sign the form. You will also need to pay the notary public a small fee for their role in this process.
Step 4 – Pay the Fee
Before you can file your petition for probate and the will, you must find out the fee. Courts to determine the fee, which can vary from one district or county to the next. Before you go to the court with the money and form, you should make a copy of the documents for your own records.
Step 5 – Present the Form Petition to the Court
Take the form and fee to the clerk’s office. Give it to them and ask them to stamp a second copy for your records. This stamp will show the date and time you filed the petition to ensure you met any requirements of the state.
When you take this step, you may also have to file a bond with the court. This is a payment to cover your services and protect the estate from bad actions of the executor. Not all states require a bond, and the will may say a bond isn’t necessary. You will need to find out the rules for where you’re filing before you submit the form for petitioning for probate.
Once the petition for probate is filed with the court, a hearing may be scheduled where the court will approve a chosen executor or appoint someone to act on behalf of the estate. However, nothing else can be done until the petition is filed.
If you fail to file the petition in a timely manner, you could be compelled to do so by the court. Another interested party could object to you acting as executor, which will also have to be resolved by the court. However, the issue cannot be resolved until the petition is filed with the court with the supporting documents.