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How to Perform Traditional Probate Proceedings

In many states, traditional probate proceedings can be supervised or unsupervised, and unsupervised can be formal or informal. Consult with an attorney experienced in probate matters in your state if there is any question as to what form your probate should take.

Unsupervised informal probate

Use unsupervised informal probate, or a similar proceeding in your state, if you don’t feel the need for any extra intervention or supervision by the court at the beginning of your estate administration. There’s no question that it’s a timesaver, as there’s no prior notice to interested persons before the will is admitted to probate and your appointment as executor.

Consult your local probate court for the necessary forms and procedures to begin unsupervised informal probate. Here are some typical steps:

  1. File an Application for Informal Probate and Appointment of Executor with the probate court along with:

    • A sworn Testimony Form to Identify Heirs and, if there is a will, a sworn Supplemental Testimony Form to Identify Nonheir Devisees

    • The will if there is one, and any codicils

    • A certified copy of the death certificate

    Determining who the heirs are and who receives notice under what circumstances is the stuff of which charts are made for probate attorneys.

    If you’re not a resident of the same state as the one where you’re initiating probate, you need to check with the court to see whether you’re allowed to act. Frequently, you’ll be allowed to do so if you appoint a resident agent in the state of domicile to be an in-state presence before you become executor.

  2. Upon your appointment: Provide the court with

    • Your proposed Letters of Appointment or Letters Testamentary for signature by an official of the court (be sure to order plenty of certified copies of the letters)

    • In certain situations, you’ll need a Fiduciary Bond. Whether or not you need a bond and a surety on the bond will depend both on state practice and on what your decedent requested in the will

    • Your signed Acceptance of Appointment

    • Any other requirements of your jurisdiction

  3. Serve a Notice of Appointment and Duties of Personal Representative.

    Serve the notice on the heirs and devisees within 14 days of appointment, including the statement that the court won’t be supervising you as executor.

  4. Send out a notice regarding attorney fees.

    Whenever you retain an attorney for the estate, whether now or later in the estate proceedings, you’ll want to enter into a written fee agreement and you may need to send a notice regarding any attorney fees to the interested parties.

  5. Send out a Notice of Continued Administration.

    If your estate runs for more than a year, you may need to file, on a yearly basis, some kind of notice of continued administration with the court, and serve it on all the interested parties.

    In some states, in certain circumstances, a holographic (handwritten) will is admissible. Holographic wills may appear out of the blue after death from an unanticipated source and are sometimes forgeries.

Unsupervised formal probate

Use unsupervised formal proceedings if you think there may be any problems with the administration of the estate, including the validity of the will, if any, the decedent’s domicile, who the decedent’s heirs are, or appointment of the executor or administrator. In unsupervised formal probate, proceedings are conducted before a judge with notice to the interested parties.

Check with your local probate court for the necessary forms and procedures to begin unsupervised formal probate. Here are some typical steps here:

  1. File a petition for probate of the will, or to set aside or prevent a will’s informal probate, or for an order that the decedent died intestate, along with a sworn Testimony to Identify Heirs form and, if there is a will, a sworn Testimony to Identify Non-heir Devisees form.

    Be sure to provide the court with the original will and any codicils and a certified copy of the death certificate.

  2. Provide notice of hearing or waivers and consents.

    You must obtain a hearing date and provide a Notice of Hearing to all the interested persons either by certified mail or in person, or publish the notice in accordance with the statute, unless you are able to obtain waivers and consents from all the interested parties. The interested parties can include

    • *Heirs-at-law and next of kin, but not beneficiaries under the will.

    • The state attorney general if there are no heirs-at-law or if there are any charitable bequests in the will.

    • If the decedent’s surviving spouse is incompetent and isn’t represented by someone other than you as executor, a guardian ad litem on his or her behalf needs to be a party to the petition.

    • If a pretermitted heir — a child or descendants of a deceased child not provided for in the will is under a disability, such as being a minor, a guardian ad litem is required.

Supervised formal probate

Supervised formal probate is rarely used and only available in limited situations. Whether it is used depends upon whether the decedent’s will, if any, provides that it may or may not be used and upon the circumstances of the decedent’s estate.

If there might be a will contest, if the beneficiaries have conflicting interests, or if an estate is insolvent, there may be reason to request supervised formal probate, or the court may order it. It’s a more time-consuming procedure.

Consult your local probate court for the necessary forms and procedures to begin supervised formal probate. What follow are some typical steps:

  1. File a petition for probate and its attendant documents, just as with unsupervised administration.

    However, you must also say why you need supervised administration and request it on the petition.

  2. Send out a notice of hearing or waivers and consents.

    Proceed just as with unsupervised formal probate.

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