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How to Petition for Probate of a Will

To start the probate process, you will need to petition for probate of the will. These guidelines can vary state by state. However, generally, the first step is to file the decedent’s will in the probate court in the county of his or her domicile. You will also need to file your appointment as executor with the probate court. The final step of the petition process is to have the will proved.

Follow these steps to petition for probate of the will.

  1. File the decedent’s will and any codicils (any supplement to a will), as well as your appointment as executor, in the probate court in the county where your decedent was domiciled at the time of his or her death.

    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 before you become executor. The purpose of the agent is to be an in-state presence to receive service of process on your behalf.

  2. Sign an executor’s bond and submit it with your petition.

    Whether or not you need a surety on the bond will depend both on state practice and on whether your decedent requested in the will that no sureties be required.

  3. Certify that you’ve sent copies of the petition and death certificate to the Division of Medical Assistance by certified mail.

  4. Make sure you list the following interested parties on the petition:

    • 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 is under a disability, such as being a minor, a guardian ad litem is required.

    • If an interested party is in the military, special provisions usually exist to ensure that that party is represented.

  5. Provide a copy of the court notice of the petition for probate to all interested parties as well as all devisees and legatees.

    This notice provides that any interested person who wants to object to the admission of the will to probate do so by a given date. Publication in a newspaper that publishes legal notices is also required. Your court’s rules determine your method of delivery to all interested parties. Some jurisdictions also require that the interested parties receive a form providing information regarding their rights.

  6. Indicate that you’ve published and mailed the notice as directed by the court and filed the notice with the court.

    In some states the notice has a “return of service” section that makes this process easy. Otherwise, follow your court’s rules for showing that you’ve published and mailed the notice as your court requires.

  7. Get the will proved.

    If no one has filed an objection to the allowance of the will, it may be proved in a number of ways, including the following:

    • If the decedent’s surviving spouse, heirs at law, next of kin, and any other interested parties have all agreed to the allowance of the will without testimony, you may request that the petition be allowed without testimony.

    • If one of the witnesses to the will signs an affidavit before the probate register or assistant register regarding the facts of the execution of the will.

    • If one of the witnesses to the will gives oral testimony before a probate judge regarding the facts of the execution of the will.

    • If you have a self-proving affidavit that was executed by the decedent and the witnesses when they signed the will.

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