Probate Petition Vs. Motion

by Valerie Stevens

    Probate courts oversee the distribution of a deceased person’s assets and payment of debts. A probate petition is the document filed with the court to begin the process of settling the estate. Motions are formal appeals to any court, including probate courts, to make a specific ruling in a case.

    Probate

    An applicant files the petition with the court along with the original will, if there is one. The petition specifies whether it is for formal or informal probate. According to the Uniform Probate Code, informal probate is conducted when there is an uncontested will or all the heirs agree on what should happen with the assets and debts. A petition seeking informal probate usually nominates a person to manage the estate, called an executor or personal representative. Formal probate is necessary when there is a dispute about the will or when there is no will and the heirs do not agree. Formal probate would also be necessary when it is uncertain who the legal heirs actually are. Often the court will schedule a hearing to appoint an executor when there is a formal probate.

    Petition

    Most states have a probate petition form. The information typically necessary to complete a probate petition in most states includes the deceased’s date of birth, date of death, Social Security number and address. The applicant also needs to supply information on the family members of the deceased, other people named in a will, and the deceased’s assets and debts.

    Motions

    A motion is a formal appeal that asks a court to make a ruling or take some action in a case that is already opened. Most motions are in written form, but some are made in open court during a trial. Usually, a person or lawyer on one side of a case files a motion with the court and serves it on the opposing party. The court might hold a hearing or rule on the motion without a hearing.

    Probate Motions

    A few routine motions commonly arise during estate administration. A motion for extension asks the court to grant more time for the filing of certain documents after the case has been opened. For example, many states have a deadline for filing an accounting of the assets and debts in the estate. If the executor has not established the value of a certain asset in time, he can file a motion for extension. An unusual motion would be for a change of venue, or change of location, in a contested formal probate. A change of venue could be sought if someone challenging the will believes he cannot get a fair ruling in the county where the case is being heard.

    About the Author

    Valerie Stevens is a professional writer and editor based in the Carolinas. She worked at daily newspapers for 20 years. Stevens holds a bachelor's degree in journalism and has a degree in paralegal studies.