Common Form Vs. Solemn Form Probate

By Beverly Bird

The word “probate” carries enough negative connotations that many people choose to avoid it at all costs. In actuality, probate does not always have to be a difficult, drawn-out affair. At the time of publication, 35 states allow simplified probate proceedings, called “common” or “informal” probate.

The word “probate” carries enough negative connotations that many people choose to avoid it at all costs. In actuality, probate does not always have to be a difficult, drawn-out affair. At the time of publication, 35 states allow simplified probate proceedings, called “common” or “informal” probate.

Opening Probate

The difference between common and solemn form probate begins when the executor first submits the will to the court. For example, when an executor elects common form probate in New Jersey, she can simply appear at the court clerk's office, file the will and fill out an application for appointment to the position. She does not have to bring the will’s witnesses with her. However, if she chooses to probate the will by solemn form, she must file a legal complaint with the probate court, asking the court to open the proceedings.

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Official Notice

Solemn form probate usually involves sending notice of the proceedings and a copy of the will to all the decedent’s heirs. These are not necessarily the people mentioned in his will, but anyone related to him who would have inherited if he had died without a will. Common form probate does not require this step, although heirs can request a copy of the will from the executor if they choose. In some states, such as Mississippi, the official solemn form probate notice includes a date for a court hearing. All interested parties have the right to attend this hearing, where a judge will admit the will for probate if he determines it is valid and meets all legal requirements.

Will Contests

With the average estate, there is usually no reason for the executor to go through the trouble of a solemn form probate if common form probate is an option. An executor generally chooses solemn form probate only if she believes an heir or beneficiary might contest the will. Solemn form probate restricts heirs and beneficiaries from doing so after a certain court-ordered date. Many times, judges hear potential will challenges during the initial court date, when they decide if a will is valid. The will is either "thrown out" at that time and declared invalid, or it can proceed through the rest of probate uncontested. In common form probate, heirs generally have years to decide if they want to challenge the will or not, which can leave the estate in legal limbo. Even after the estate settles and closes, there remains the possibility that an heir might file a contest to reopen it again. In Georgia, heirs have four years in which to contest a will probated by common form.

Binding Effects

Because of the possibility of will contests, beneficiary distributions made through common form probate are not final until the challenge deadline passes. This means a beneficiary can receive an inheritance, only to have to return it to the estate several years later if another heir successfully challenges the will. With cash inheritances, the money could be long gone by then. Real estate and tangible assets might fall into disrepair. Executors generally won’t risk this. They’ll either ask the beneficiary to sign a binding agreement to return the inheritance to the estate, if necessary, or they’ll request solemn form probate to protect themselves.

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