What Is a Petition to Probate a Will?

By A.L. Kennedy

The word "probate" describes the legal process by which a will is found to be valid or invalid, as well as the process by which the will is executed. A petition to probate a will is typically filed with the court along with the will so that the executor may be given the formal power to carry out the directions listed in the will.

Contents

In most states, a petition to probate a will can be filed by filling out a standardized form provided by the probate court, according to FindLaw. Most forms contain spaces for you to fill in your name or the name of the executor, the deceased person's name and date of death, and a place to list the known beneficiaries of the testator, or person who wrote the will. The petition to probate a will also contains a section for the executor to request that the probate court grant letters testamentary, which are an official court document giving the executor the power to act on behalf of the estate, according to the Superior Courts of California.

Process

Most courts require a number of documents to be filed along with the petition. For instance, the Superior Courts of California require you to file the Petition to Probate a Will, the original of the will itself, a Notice of Petition to Administer Estate, a blank copy of the Letters and Order to Probate forms, and the forms required for the executor to sign, including the Duties and Liabilities of Personal Representative.

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Proving

In some cases, the will must be "proved," or shown to be valid, before the probate court will grant a petition to probate a will. Many state courts require that wills that are holographic, or written entirely in the testator's own handwriting, must be proved, and so must wills that are signed by two witnesses but not notarized. Most states recognize wills that have been notarized as "self-proving" and do not require the will to be proved in court, according to FindLaw.

Who May File

Any interested party may file a petition to probate a will, according to the American Bar Association. An "interested party" is someone who has something to lose or gain from the probate of the will. Usually, the executor or personal representative of the estate files for the petition to probate a will in order to receive her letters testamentary as soon as possible and begin handling the estate's business. However, if the executor does not file or cannot be found, a beneficiary or other interested person may file the petition, according to the American Bar Association.

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Can an Executor of a Will Be Forced to Execute the Will by a Judge?

A judge can remove an executor from his position if he does not do his job or if the beneficiaries present good cause why he should be removed. But a judge cannot force a named executor to oversee probate of a will if he doesn't want to and, in fact, most states have simplified procedures for getting out of the job.

What Happens When an Executor Resigns From an Estate?

Serving as an estate executor is never a compulsory duty; the executor always has the right to resign, no matter what the reason. In fact, executor resignations are a common part of estate administration and the probate process. When this occurs, the presiding judge simply works with the estate to appoint a new executor.

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