How to File a Petition in Probate Court

If you’ve been named as the estate executor of a loved one’s estate, you’re probably dealing with a lot of emotions: Grief, confusion, frustration, and stress are all completely normal ways to feel during this period of time.

However, your role as estate executor also means that you have certain responsibilities you’ll need to fulfill. An executor will deal with a lot of paperwork during their tenure, and one of their main tasks will be filing the petition for probate with the probate court in the county where the deceased resided.

Filing the petition with the probate court will be necessary to begin the process of settling a loved one’s estate. Here’s what you need to know about filing a petition for probate with the court.

Keep in mind that probate procedures can vary significantly depending on where you live. If you’re unsure about any step, consider consulting a qualified estate professional.

Step 1: Obtain the will, death certificate and other key information

When someone passes away, finding their will is of utmost importance. Ideally, your loved one will have discussed the location of their will with you beforehand, so you’ll know exactly where to look when the time comes. It’s important to find the original will and to obtain a death certificate, so the court can verify the will’s authenticity and establish it as the legally governing document of the estate.

If you can’t find the will in the deceased’s home, their estate planner may have a notarized copy or perhaps even the original on file. Wills are often kept in secure locations, so be sure to also check:

• Home safe

• Bank safety deposit boxes

• Filing cabinets

It is critical you find the most recent copy of the will, as only the most current valid version is legally enforceable. When reviewing the will, take note of who the named personal executor is, along with any beneficiaries. This information is needed to fill out the petition form.

In addition to finding the will and obtaining a death certificate, a number of states require assets and liabilities of the deceased to be listed on the petition form.

Assets may include:

• Real property (e.g. home, cottage, rental property)

• Vehicles

• Digital assets (e.g. cryptocurrency, online accounts)

• Bank accounts

• Investment accounts

• Retirement accounts and pension plans

• Insurance policies

• Household contents and personal effects

• Business interests (e.g. shares in a private corporation)

Liabilities may include any funds owed to creditors, which could be credit card debt, personal debt, business loans, etc.

Step 2: Obtain and complete the petition form

After you have found the original will (if there is one), obtained a death certificate and gathered any other essential information, you’re ready to fill out the petition for probate form. As each state has their own version of the petition form, you’ll need to use the one specific to your jurisdiction. If possible, download the form from the county court’s website. In some cases, you may need to retrieve the form in person.

Remember: Not all states allow interested parties to fill out and file the probate petition form themselves, and instead require an attorney to do so. Before starting any steps related to probate forms, consult with an estate professional.

To fill out the petition for probate form, you may need the following information

• The decedent’s date of death

• The decedent's place of residence

• Marital status and information about surviving spouse or legal partners, if any

• Names, contact information, and relationships of heirs, beneficiaries, and close relatives

• Names and contact details of heirs, beneficiaries, and next of kin

• A detailed inventory of the assets and liabilities of the decedent

• The name of the executor or person who has chosen to act as administrator (if there is no will)

• Surety bond information (if applicable)

You will also need to submit a copy of the death certificate and the will (if there is one) with the petition form.

Step 3: Have the petition notarized, sworn or verified

States require probate petitions to be verified through various methods, the most common being

verification under penalty of perjury. This is where you sign a statement declaring the information is true under penalty of perjury. No notary needed.

Some states require the petition to be notarized. This is where a notary public verifies your identity and witnesses your signature, then affixes their seal. Typical cost is $5-$25.

Requirements vary by state, so always confirm current local requirements.

Step 4: File the petition with the courts and pay applicable fees

Submit your completed petition for probate along with the original will (if applicable) and a certified copy of the death certificate to the county probate court in the jurisdiction where the deceased lived. Filing the petition officially opens the probate process and allows the court to appoint you as the estate’s executor (or personal representative). The court will issue "letters testamentary" (or equivalent documents) that serve as official proof of your authority to manage the estate, which you can use to deal with banks, government agencies, and others.

The petition for probate needs to be submitted to the county probate court in the same jurisdiction as the deceased’s residence. If the county of the deceased doesn’t have a specific probate court, then the petition is filed with the court clerk.

Once the required documents have been submitted to the court, you’ll get a stamp confirming the day and time they were filed.

Depending on the state you are filing in, you may also have to pay a bond once you file your petition. A probate bond acts as a form of insurance to protect the estate against any potential wrongdoing by the executor or administrator.

The bond amount is usually based on the estate’s value and is returned once the estate has been properly settled. Not all states or counties require a bond, so be sure to check the rules in your jurisdiction before filing for probate.

Step 5: Notify all interested parties

As part of the petition process, a number of states require applicants to notify all interested parties about the probate application. This includes family members of the decedent, beneficiaries and any known creditors. To notify these parties, a formal notice is usually mailed to them or delivered as required by the court.

You may also be required to publish a notice of the probate application in a local newspaper, as mandated by your court. Known creditors should receive formal mailed notices as well.

Proof that these notices were properly mailed and/or published may also need to be filed with the court.

Step 6: Obtain authorization from the court

Following the filing, the court will usually schedule a hearing to review and approve the appointment of the estate executor. The executor may be required to notify beneficiaries, creditors, and anyone else with a claim to the estate about the hearing, to give them an opportunity to raise any objections.

If no objections are raised and the court approves your nomination, you will receive official authorization, which is often called “letters testamentary” or similar, which allows you to carry out your duties as the executor.

Frequently Asked Questions:

Do all estates need to go through probate?

No, not all estates need to go through probate. Probate is only required if the deceased person owned assets solely in their own name without a beneficiary designation or joint owner. Property that passes automatically, such as joint accounts, property held with rights of survivorship, life insurance policies, retirement accounts with named beneficiaries, or assets placed in a trust, can bypass probate.

Additionally, many states have small estate procedures (like affidavits or simplified administration) that allow heirs to collect or transfer assets more quickly without going through a full probate process, provided the estate falls below the state’s dollar threshold.

What happens if I don't apply for probate?

If probate is not filed, the deceased person’s probate assets remain frozen, and heirs cannot legally inherit or transfer them. While non-probate assets like joint accounts or life insurance may still pass directly to their beneficiaries, the rest of the estate cannot be settled without court involvement.

Furthermore, if you as the named executor do not file for probate, heirs to the estate could claim that you’re not fulfilling your duties or even standing in the way of the will’s directions and take legal action against you.

What if there is no will?

If a person dies without a will, known as being intestate, the probate process is largely the same with some key differences. Similar forms will still need to be completed, and a death certificate attached. However, instead of an executor named in a will, the court appoints an administrator to manage the estate’s assets and liabilities.

To start probate, someone usually files a petition with the probate court (often a close family member who is next of kin) to be appointed administrator. Upon filing the petition, you must notify all potential heirs and surviving family members that may have an interest in the estate and typically publishing a notice to creditors in a local newspaper is required.

How quickly must probate be filed?

Filing deadlines for probate involve two separate requirements that vary by state:

Filing the will: Most states require anyone possessing a will to file it with the court within a specific timeframe after death - typically 10 to 90 days. For example, California requires 30 days.

Filing the probate petition: This deadline is often separate from the will filing requirement. Some states have no specific deadline for opening probate, while others require action within months or years.

As a rule of thumb, “the sooner the better” certainly applies. The sooner you open probate proceedings, the quicker you’ll be able to settle the estate and distribute the inheritance.

Dragging out probate will only cause unnecessary stress for you. Beneficiaries may start getting frustrated, and you’ll be tasked with maintaining assets and real estate as well as keeping up with bills and taxes until the estate is settled. It’s in everyone’s best interest to file probate as quickly as possible.

Do I need an attorney to file for probate?

Attorney requirements vary significantly by state and situation. Most states technically allow self-representation in simple, uncontested estates, but practical restrictions often apply. Attorneys are typically required when the will is contested, multiple beneficiaries exist (mandatory in Texas), or the estate involves complex assets or exceeds small estate thresholds.

Am I required to act as estate executor if I am named in the will?

Just because you were named as executor in a will does not mean that you are forced to accept the role. If you feel that you won’t be able to carry out the responsibilities for whatever reason, you are allowed to reject the role. To reject the role you need to send an official declination form to the same probate court you petitioned.

When the named executor declines the role, there are a number of ways the role may be filled, depending on your state’s laws. The will may name an alternate executor, in which case that person may accept the role. If the alternate executor also declines, then the next of kin can apply

Regardless, the court has to approve the choice and the selected person has to accept.