Probate is the legal term for the process of ensuring the validity of a will and granting authority to the person named in it to act as its executor. It can be a long and tiresome process, but it is a necessary step in the administration of the deceased's estate. Knowing how to probate a will correctly may reduce the time and cost of the process.
Create an affordable will with LegalZoom
Visit the probate court responsible for the area where the deceased person lived. Ask for the form to petition the court for probate of a will. Complete this form, giving details of who the executor of the will is to be; where notice of the will's probation is to be publicized -- usually a local newspaper; the date the deceased died and where the deceased lived.
Submit the petition to the probate court. The court will then admit the will to probate and set a hearing date. On that date, the executor is admitted to office -- which often requires the swearing of an oath -- and is given the necessary documentation to act as executor of the estate. These documents are usually called the Letters of Administration, but in some areas they are known as Letters of Testamentary.
Pay the court fees. These are usually between 3 and 10 percent of the value of the estate, depending on circumstances. The court then indexes the will and approves the executor to pay the deceased's outstanding bills to allow the settlement of the estate. Publish a notice to the deceased's creditors that the will has been submitted to probate. The usual method for this is to print an advertisement in the deceased's local paper.
Inventory the deceased's estate, including money, land and other assets. Collate and pay outstanding debts and bills. Distribute the remaining monies and property according to the terms of the deceased's will. Where there is no will, money and property is distributed according to the intestacy laws of the state the deceased resided in.
- Petition for Probate of Will form
Tips & Warnings
- Before visiting the probate court to collect the requisite petition form, it is worth contacting the clerk of the court, either by telephone or email, to ask whether the court in your area requires additional documentation. Courts in certain jurisdictions require additional forms at the start of the probate process, such as the Duties and Liabilities of Personal Representatives form in California.
- Probate can be a long and arduous process. While the least complex of estates may take only a few months to settle, from filing the petitions to distributing the assets, larger and more complex estates may take years to settle completely. In addition, any contests made against the terms of the will may stall the process and take months or years to settle in and of themselves, before probate can continue.
References & Resources
- Jupiterimages/Comstock/Getty Images