The Probate Process

Probate is a court process to prove the validity of a will and to carry out its provisions.

Probate begins by choosing the proper court. Jurisdiction is normally specified in the will itself.

The person having custody of the will must submit it to the appropriate court along with a petition to admit it to probate. An application for appointment as executor normally accompanies the petition for probate.

The person bringing the petition must establish that death and domicile of the testator; that the will is authentic; and that the will was validly executed. Witnesses are normally not necessary if a self-proving affidavit is attached to the will.

A person who has an interest in the distribution of proceeds may contest the validity of the will within a limited timeframe by alleging:

• Fraud, undue influence or coercion

• Mistake

• Failure of due execution

• Lack of testamentary capacity

If the decedent died without a will, administration is initiated by filing a petition for grant of letters of administration.

The court will require administrator to file a bond unless waived by the testator. The court approves an appointment by issuing a certificate of appointment (letters testamentary in the case of a will or letters of administration in the case of intestacy).

The primary duty of the representative is to collect all assets, pay creditors, and distribute remainder. He/she is required to prepare and file an inventory of assets of the estate and publish his/her notice of appointment in a local newspaper.  This notice serves to notify creditors of claims against the estate. Claims must be filed against the estate within a time limit specified by statute. The representative is typically required to render accountings to court at stated intervals and upon completion of administration.