How Probate Begins

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How Probate Begins

The probate process is initiated in the county of the decedent’s legal residence at death. Somebody acting on behalf of the decedent must come forward with the decedent’s original will. Usually, this person is named in the will as the executor, chosen by the decedent as the one in charge of "wrapping up" his or her affairs. If there is no will, somebody must ask the court to be appointed as administrator to perform the same function. Most often, this is the surviving spouse or an adult child. If there is a dispute over who should serve as administrator, the court will appoint a neutral public administrator who can be counted on to be fair. This person is paid an hourly fee from estate funds.

Executor and administrator responsibilities

The executor and administrator have practically identical legal rights and responsibilities, and both may be referred to as the decedent’s personal representative. Note that the personal representative’s authority only extends to the "probate estate"—defined as property subject to the jurisdiction of the probate court. Assets disposed of outside the probate process are part of the "non-probate estate," and the executor or administrator has no control over these. If a decedent has probate property outside the court’s jurisdiction, then that property must be subjected to ancillary probate in the other jurisdiction.

Petition for Probate of Will and Appointment of Executor

The executor-to-be should file (with or without the help of a lawyer) a Petition for Probate of Will and Appointment of Executor. This is done at the probate court clerk’s office. Probate court is a division of the state court system, but it might be referred to by another name. (A certified copy of the death certificate must also be shown to the court. One will need a death certificate for other purposes, so it is a good idea to order about ten copies initially. The coroner or mortuary can assist with this.)

Appearing before a judge

A date is usually set for the person named as executor (or administrator) to appear before a judge, present the will, if any, and ask to be formally appointed. After a will’s genuineness and validity are established—by simple inspection of the document—the court issues an order "admitting the will to probate," which the county clerk then records. In some states, expedited procedures may be available.

Once probated, a will is a public record, and so are the subsequent filings with the court. These papers are open to inspection by anyone. Many states’ law requires public notice of the probate proceeding by the publication of newspaper ads.

The letters of administration

The probate judge officially appoints the executor (or administrator). This appointment confers on the personal representative full authority to deal with the decedent’s probate property and accounts. The personal representative is given a certified court document that must be honored by financial institutions and others. In some places, this is called the "letters of administration" or "letters testamentary."