WHO INITIATES PROBATE? AND HOW?

When a loved one dies and probate is necessary, what happens? Who begins the process, and how?

If there is a will, whoever has custody of the will should first deposit the will with the probate court in the county where the decedent lived.  This is supposed to be done within 30 days of the decedent’s death.

If the will designates an executor, then the named executor files a Petition for Probate (Form DE-111) with the probate court (again, in the county where the decedent resided).  If there is no will, or the will does not designate an executor, then “any interested person” over 18 years old may submit the same form, requesting to be appointed the administrator (functionally, this is the same as the executor – both of which are considered “personal representatives”) of the decedent’s estate.  Note that being named executor does not obligate you to act as executor – you can decline, and someone else can Petition to become the personal representative. Also, if the person named executor fails to file a Petition within 30 days of knowledge of the decedent’s death, they may be deemed to have waived the right to appointment.

If the petitioner is a nonresident, s/he will likely be required to post a bond.

When the Petition gets filed, the probate clerk will set a hearing date.  The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus surviving family members, even if there is a will and they are not named in it. The notice may be mailed, but NOT by the petitioner - it must be mailed by any other adult who is not a party to the case.  The petitioner must also arrange for notice of the Petition to be published in a newspaper of general circulation.

The court’s “probate examiner” reviews the case paperwork before the hearing to see if it was done correctly. S/he will issue “defects” if there are problems.  Once all the paperwork has been reviewed by the examiner and corrected (if necessary), at the hearing, the probate judge will decide whether or not to appoint the Petitioner as the personal representative of the estate.  Absent any objections, the Petitioner will generally be appointed as personal representative.  However, other individuals may file their own Petition, and the Judge will need to select between them, or may appoint multiple personal representatives.  Further, there are some circumstances under which the Judge will find it appropriate to appoint a public administrator.

At the hearing, the personal representative will be issued “Letters Testamentary” which gives the personal representative the authority to act as executor or administrator, to handle the decedent’s assets, and to continue the probate process.