American
Estate
Planning
Attorney Directory
 ·  Legal Wills  ·  Living Trusts  ·  Probate Law  · 
Find an Estate Planning Lawyer Near You! Enter Zip Code:

How To Handle A Formal Probate Hearing

Formal probate is often necessary because either the decedent did not plan to avoid probate, or as is often the case, the decedent attempted to avoid probate with joint assets, a revocable living trust and other steps, but significant assets were not handled properly. If the small estate probate or summary probate proceedings are not available, then a formal probate is necessary. Formal probate generally begins with filing a form with the surrogate's court, often called a petition.

Affidavit and basic documents
These forms, which will vary in name, content and complexity from estate to estate and court to court, are an essential part of the first step of beginning the probate process.

Who should complete the petition?
These will generally be prepared by the estate attorney and/or you as the executor. In some jurisdictions, however, the court clerk will prepare the documents for you. You may not need to prepare much more than a simple form listing all heirs, family members, executors, witnesses who signed the will, their addresses and other pertinent information. In these cases, it may not be advantageous to pay an estate attorney to complete this work. Before making the decision, however, ask the attorney how these types of forms are billed. Many estate attorneys have paraprofessionals or probate secretaries who can complete the forms in a fraction of the time that you can and may know how the court's clerks like certain nuances handled, all at a small percentage of the fee the attorney would charge. In any case, it's almost always advisable to have an estate attorney review any forms you prepare

Getting the forms
If the court does not provide forms (and even if it does) you may want to go to a local office supply store that sells legal forms for your state and the specific court (generic forms are unlikely to be accepted by many courts). Try to obtain a catalog of forms since it will include a listing of all the forms available. Again, it's advisable to have any forms you prepare reviewed by an estate attorney before use.

How to prepare the petition
Make photocopies of any forms before completing them. First fill in the photocopies in pencil to make it easy to make corrections and changes later. Once you have completed the rough copies, neatly type the proposed final forms. Be sure all the exhibits and other attachments the clerk requires are attached to the forms and properly labeled. It is best not to have any loose papers that do not reflect the decedent's name and the probate file number. The file number will generally be assigned after you file the petition so you can leave blanks "File No. ---" on pages so it can be added later.

Once the estate lawyer has approved the completed forms, make several copies of these before signing. The court may want more than one copy and it is advisable that each executor have an original signed petition in his files.

What documents and exhibits should I attach to the probate petition?
The original documentation required may include an affidavit signed by the persons who witnessed the decedent's signature on the will. Whether such an affidavit is required depends on local law and the manner in which the will was executed. Many states permit the use of a self-proving will. This simply means that the will includes certain representations, often signed again by the witnesses and perhaps the testator as well, so that the witnesses do not have to appear in court or provide an affidavit.

Petitions also typically require disclosure of asset information. Since you will probably only have just begun the process, you will have to make estimates. Simply indicate which figures are estimates. Also, ask the clerk if you need to amend the petition when more exact figures are available. The asset data may be necessary to determine the filing fee involved. (It is also necessary for determining whether affidavit probate or summary probate is available.)

Filing the petition
Once the initial documents are prepared, and an estate attorney has reviewed them, who takes them to the court? Depending on the jurisdiction, they may be filed by the estate attorney or the executor. If you have the time and there is no particular advantage to having the attorney handle the filing, you can do so. Although this will save costs, it may not be advisable if issues are involved that could require the attorney's presence. In some jurisdictions where the probate process has been simplified, you will almost never need the attorney to file. In other jurisdictions, even if it is permissible to handle the filing on your own, it may not be advisable. If you are not sure, ask the estate attorney. If he or she says that he or she should handle the filing, ask why. If you are still in doubt, call the surrogate's court yourself to confirm.
The next step is filing the documents, which means showing up at court with a check or money order for the court fees, the original will, an original death certificate and the required court papers completed and signed (often notarized). Ask ahead of time what type of payment will be accepted for the court fees: personal check, attorney's check, money order or cash. If the particular court has a policy as to the type of payments it will accept, it will not make an exception for you.

Don't delay in filing the will. Until the will is filed, there is always the risk of it being lost or destroyed by fire or otherwise. Also, some states require that the will be filed within a specified time period of death. Finally, the sooner you begin the probate process, the sooner you will have Letters Testamentary and be able to use them to gain control over assets.

Notices
Most states require that some type of notification be given in writing to persons named in the will, or not named in the will but who logically might be interested in being informed of the probate. This notification is referred to as notice.

Rejection and resubmission of the petition
Probate isn't like school term papers. You turn the paper in, the teacher gives you a grade, and the process ends. With probate, everyone must get 100 percent. If the petition or related documents are not adequate, the clerks will either return them to you for correction, or hold them and request that you submit additional documents to supplement what you filed. Do not be alarmed. And do not assume that if you are paying an estate attorney, rejection should never occur. It will. Rejections can occur for many reasons.

The forms filed may have been updated or laws or procedures changed since the blank forms were obtained. Courts do not have the resources to track down and notify anyone with a probate pending as to the changes. So the only way to find out is by filing a petition or other documents that are rejected. Many rejections are for what appear to be minor technicalities. You may assume that some minute technical correction is absurd, but clerks see thousands of probate matters each year. They may be sensitive to issues that you are unaware of. They may have learned of the importance of certain fine points from problems that have occurred in an unusual case or two. In many situations, the clerks are aware of how the judge who must issue an order wants the paperwork prepared. It is certainly preferable to have the clerk identify the problem so you can correct it before more time is spent having incorrect documents await the judge's rejection.

Letter Testamentary
Once the petition has been filed, notices given and other court or state law requirements complied with, if there is no challenge to the will or proceeding, the court will issue Letters Testamentary authorizing you to act on behalf of the estate. You should generally order five to 10 (more for a larger or more complex estate) originals. Almost every bank, brokerage firm or other person you will ask to transfer assets of the decedent to the estate will require an original (as well as a death certificate).
Back to Top
Copyright © 2000-2002 American Estate Planning Attorney Directory. All rights reserved.

AEPAD is the American Estate Planning Attorney Directory.  While the information on this site deals with legal issues, it does not constitute legal advice. If you have specific questions related to information available on this site, you are strongly encouraged to consult an attorney who can investigate the circumstances of your situation and the particulars in your state.