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How to File a Petition in Probate Court

In order to kick off the probate process, you’ll have to file a petition for probate with the relevant court. Here’s how that works.

How to file a petition for probate

If you’re reading this, it’s probably because you’ve been named as the estate executor of a loved one’s estate. In that case, 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 in this trying time. An executor will deal with a lot of paperwork during their tenure, and one of their main tasks will be communicating and filing paperwork with the probate court in the county where the deceased resided.

From initiating probate procedures to finally closing the estate, filing petitions with the probate court will be necessary to efficiently and comprehensively settle a loved one’s estate. Here’s what you need to know about kicking off probate by filing a petition for a grant of probate with the court.

Step 1: File the will

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 file the original will, along with a death certificate, in order to allow the court to evaluate the will as original and legally valid.

At the same time, you as executor will also have to submit an application for probate alongside the will and death certificate. This will allow the court to officially name you as the estate’s executor, issue letters of testamentary so that you can prove your role as executor to banks and legal institutions, and officially open probate.

The application will usually ask for the deceased’s surviving family members as well as other beneficiaries. If your area doesn’t have a specific probate court, then the will and the accompanying documents are filed with the court clerk.

Step 2: Choose who will be the executor

Just because the will named you as executor does not mean that you are forced to accept. If you feel that you won’t be able to carry out the responsibilities for whatever reason, you are allowed to reject the role. In that case, someone else who was close to the deceased can apply to the role.

In some cases, a probate lawyer may take on this role. In cases where there is no will, then the spouse or next of kin can apply to act as a personal representative. In either case, the court has to approve the choice and the selected person has to accept.

Step 3: Off to the notary

Your petition for probate needs to be notarized before the court accepts it. The form will need to be notarized before you sign it and submit it, and you’ll need to pay a fee for notarization. The fee varies by location. You should also make copies of everything for your records.

Step 4: Pay the court fees

Unfortunately, applying for probate is not free. The fees required by the court to file a petition for probate depend on what district or country the court is located in. In California, for example, the cost to file a petition for probate is $435. In British Columbia, Canada, filing fees for estates worth over $25,000 are $200. It’s best to check with the local court you’ll be filing with to find out exactly how much you’ll need to pay.

Step 5: Get authorization from the court

Once everything has been notarized, paid for, and submitted to the court, you’ll get a stamp confirming the day and time when you’ve filed your documents.

In some cases, you may also have to pay a bond once you file your petition. A bond is basically a deposit that acts as insurance to protect the estate from any potential malfeasance on the executor’s part. The bond amount is returned once the estate is settled properly. Keep in mind that not all counties and states require a bond for probate, so make sure to inform yourself whether you’ll need to pay one when filing for probate.

Once your petition has been filed, the court may schedule a hearing to approve of and grant official authorization to the chosen estate executor. If you’ve been chosen as the executor, you may have to notify beneficiaries, creditors, and anyone else with a claim to the estate about the hearing, so that any potential objectors can voice their concerns. If no objections are raised, and you and the court both agree to the nomination, then the court will issue letters of testamentary to grant you official authorization to carry out your duties as executor.

Frequently Asked Questions:

Do all wills go to probate?

No, not all wills need to go through probate. The only wills that need to go through probate are wills that list assets which are solely in the name of the testator. Any assets that are jointly owned or have direct beneficiaries, such as pensions and retirement accounts, can bypass probate.

The smaller the estate is (meaning the fewer assets it has that do need to go through probate), the higher the likelihood of being able to go through an expedited probate or skipping it entirely.

What happens if I don't apply for probate?

If you don’t apply for probate, then the deceased’s estate doesn’t get settled and heirs do not receive their inheritance. It also means that beneficiaries do not have legal claims to assets that were supposed to be transferred to them in accordance with the deceased’s wishes.

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. Not applying for probate creates confusion and uncertainty over who now has ownership over the deceased’s assets, and leaves you vulnerable to potential lawsuits.

How quickly must probate be filed?

While different counties and states may have slightly different regulations, the general rule is that the executor usually has 30 days after the testator’s date of death to submit the will and the death certificate to the relevant court. Some places don’t even have any specific deadlines at all.

However, when it comes to applying for probate, the adage “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 therefore in everyone’s best interest to file probate as quickly as possible.

If you’re currently struggling with applying for probate or feel overwhelmed by all the paperwork you have to deal with, you’re not alone. At ClearEstate, our team of experienced estate professionals will guide you through every step of the probate process, giving you the tools you need to navigate this journey. Get in touch for a free consultation and find out how we can help.

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