Who Can Initiate Probate?

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The Role of the Executor

An executor or "personal representative" is a person designated in the will by the deceased person (decedent) to distribute the decedent’s estate to heirs and beneficiaries. It is the executor of the estate who generally initiates the probate legal process. Probate involves a number of legal proceedings in the state probate court to determine whether the will is valid and to oversee distribution of estate. 

What Are Some of the Executor's Responsibilities?

First, the executor must locate the will and death certificate. Then she notifies all employers, government agencies, and financial organizations of the death. Next, the executor usually contacts an attorney to help her deal with the probate court and determine whether probate is even necessary. 

Who Else Can Initiate Probate Process?

While it is the executor’s duty to initiate probate, any person with an interest in the estate can initiate probate if the executor has failed to do so. For example, with debtor estates, beneficiaries may have little incentive to start probate, and so the creditors will have to step in to start the process in order to get what little assets remain.

What Documents May Probate Court Require?

If the estate is valued over a certain amount, the attorney, in the name of the executor, will file the correct forms with the probate court. Some states require that the executor hire an attorney.  Documents filed include the will, a "petition for administration," "notice of appointment and pendency of probate," etc., along with applicable court fees. 

How to Address Conflicts of Interests? 

In addition, possible beneficiaries may start probate if a named executor delays in filing (e.g., is suspected of stealing assets in the estate). If a possible beneficiary does not have the will in hand, she may file for probate under the state laws of intestacy, meaning how the estate is to be distributed if there is no will. The probate court will consider the circumstances and may appoint any other person as executor if the executor named in the will has not fulfilled her duties.

Why Seek an Attorney's Help?

If you are involved in probate proceedings, a qualified probate lawyer may help you deal with potential and actual conflicts while ensuring that your interests, rights, and remedies are adequately addressed. On the other hand, an estate planning attorney can help you avoid probate proceedings by developing appropriate estate planning strategies, which may drafting of a will or trust. An estate planning attorney can address your unique estate situation to develop a clear estate plan.

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Last Modified: 08-25-2014 03:26 PM PDT

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