The probate process can be confusing and complicated. In order to make applying for probate less stressful, an applicant should follow a few simple tips. First, he should make sure he has searched for a valid will. Second, he must determine who will be the administrator or executor of the estate. Next, he should have all the paperwork required by the court with him when he submits the application or petition. He should also consider contacting a probate attorney if the decedent left a sizable estate or if he anticipates a will contest.
Probate is the legal process by which a decedent's estate is inventoried, valued, and eventually passed down to the heirs. Depending on the jurisdiction, probate may be mandatory or optional. The first step in the probate process is to apply or petition the court to open a probate case.
Before applying for probate, a thorough search should be undertaken to determine if the decedent left a last will and testament. Not only will finding a will assure that the decedent's wishes are followed, but in many jurisdictions anyone in possession of a last will and testament is legally obligated to come forth after the decedent's death and offer the will for probate. If a will is not found among the decedent's personal or legal documents, a check with relatives or the decedent's attorney may uncover one.
The person who is requesting court approval to be the administrator or executor of the estate is generally the person who initiates the probate process. If the decedent left a will, then the will is likely to indicate who the decedent wished to be the executor. In the absence of a will, or if the will did not name an executor, then anyone may request to be the administrator of the estate. Ultimately, the court must approve the executor or the administrator.
Aside from a last will and testament, there may be other documents needed when applying for probate. First among the additional documents needed is the decedent's death certificate, which should be available within a couple of days after death. Next, a court application form or petition for probate should be completed. Many probate courts offer forms for a pro se petitioner to use when requesting the court to open the probate case. Although they may not be necessary when initially applying for probate, additional documents, such as titles, bank statements, and financial records, that will be needed later in the process should be located.
Applying for probate does not require the applicant to retain the services of an attorney. If the decedent had considerable assets upon death or if it appears there may be legal issues regarding the probate process, however, then the advice and guidance of a professional may be necessary. The probate process can involve complicated legal and tax issues that may be better handled with professional assistance.
