The Process of Opening an Estate

By Andrine Redsteer

Although the process of opening an estate varies from state to state, many aspects of the process are essentially the same. Often, the person who gets the proceedings started is the person named as executor in the decedent's will. If the decedent did not make a will -- and by extension, failed to name an executor -- a family member or close family friend may start proceedings by filing paperwork with the probate court in the county in which the decedent lived.

Although the process of opening an estate varies from state to state, many aspects of the process are essentially the same. Often, the person who gets the proceedings started is the person named as executor in the decedent's will. If the decedent did not make a will -- and by extension, failed to name an executor -- a family member or close family friend may start proceedings by filing paperwork with the probate court in the county in which the decedent lived.

Proof of Death, Filing Petition for Probate and Admitting a Will

One of the first steps in opening an estate involves filing proof of the decedent's death with the probate court -- this is usually done by the person who was named as executor in the will or by a person who believes he should be the estate administrator. Some probate courts require the original death certificate, whereas others will accept a copy of the original death certificate. Although probate court procedures vary among states, filing a petition for probate, filing proof of death and admitting the original will may often be done at the same time. If the decedent did not make a will, proof of death and filing an application for informal probate is typically required.

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Appointment of Executor or Personal Representative

After the petition or application for probate has been filed -- along with the death certificate -- the probate court will appoint the person named as executor in the will or a person who is deemed to have priority over other heirs to administer the estate. For example, surviving spouses typically have priority over other relatives. Many probate courts require the person who seeks appointment to send notification of their request to heirs who have priority. If those heirs object to his appointment, the probate court may choose an heir with priority to administer the estate instead.

Letters Testamentary or Letters of Administration

Probate courts generally grant authority to estate administrators by issuing letters testamentary or letters of administration. Letters testamentary are granted to an executor named in the will whereas letters of administration are granted to whoever is appointed as personal representative, if the decedent did not make a will. Once these letters are issued, the executor or personal representative is authorized to make financial transactions such as accessing the decedent's bank accounts.

Notifying Heirs and Creditors

Once an executor or personal representative obtains his letters, he must notify all heirs or beneficiaries of the will of his appointment. Probate courts generally require that notification to heirs or beneficiaries be sent via certified mail, as proof of mailing the notification is usually required. Furthermore, the decedent's creditors must be notified of pending probate proceedings because creditors have a right to submit claims to the probate court so that the executor or personal representative may pay the claims using estate assets.

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Who Enforces the Execution of a Will?

References

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