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What is a probate petition, and who can file one?

On Behalf of | Feb 16, 2024 | Probate |

Probate petitions are a crucial aspect of navigating the legal waters after the passing of a loved one. A probate petition is a legal document filed with the court to initiate the probate process.

Probate is the legal process of administering the estate of a deceased person. This process aims to resolve any outstanding debts and distribute the estate’s remaining assets to heirs or beneficiaries. The probate petition serves as the formal request to open probate proceedings and appoint or approve a personal representative or executor to oversee the estate’s administration.

Types of probate petitions

There are several types of probate petitions, each serving a specific purpose depending on the circumstances of the estate. A petition for formal probate is filed when there is a valid will that needs to be admitted to probate.

This petition requests the court to validate the will, appoint an executor named in the will (or personal representative if no executor is named) and oversee the distribution of assets according to the terms of the will.

When there is no dispute regarding the will’s validity and the estate is relatively uncomplicated, a petition for informal probate may be filed. This simplified process allows for the swift administration of the estate without the need for extensive court involvement.

In cases where there is no valid will (intestate), or the named executor is unable or unwilling to serve, a petition for administration is filed. This petition requests the court to appoint a personal representative to administer the estate according to the state’s intestacy laws.

Who can file a probate petition?

If the decedent left a valid will, the individual named as the executor therein has the primary authority to file a probate petition. The executor’s role is to carry out the wishes outlined in the will and ensure the proper distribution of assets.

The surviving spouse also has the legal right to file a probate petition. This is especially pertinent if they are named as the executor in the will or stand to inherit a significant portion of the estate under state law.

If there is no valid will or the named executor cannot fulfill their duties, heirs or beneficiaries of the estate may petition the court to initiate probate proceedings. The court will appoint a personal representative to administer the estate in such cases.

Navigating the probate process can be daunting, especially in the midst of grief and loss. Yet, understanding the role of probate petitions and who can file them is essential for helping ensure a smooth and orderly administration of an estate.