File petition to start probate
Probate is a legal process that validates the deceased’s will, appoints an executor or administrator, and authorizes the transfer of the deceased’s assets to legal heirs.
Typically, this process follows the following steps:
- An executor, family member, or attorney files an application called the petition for probate of will to get probate authorized in court, along with a certified copy of the death certificate, with the probate court in the county and state where the deceased lived
- This application is provided by the probate court and asks that the will be officially submitted into probate
- Once reviewed by a judge, a hearing may be called to begin the probate process. If a hearing is not required in the state where the deceased lived, the probate court will issue letters testamentary (may also be referred to as letters of administration) to the executor or administrator.
- The letters testamentary give the executor or administrator authority to act on behalf of the estate. This authority will enable the executor to access the deceased’s assets, pay their bills and debts, and give assets to the deceased’s beneficiaries according to their will, or state law if there is no will.
To begin probate, a family member, close friend, or attorney acting on behalf of the estate should contact the probate court in the county and state where the deceased lived.
The clerk of the probate court will provide instructions for starting the legal probate process, as well as necessary paperwork.
Important
Even if probate is not necessary, state law may require that a will be validated in court before the estate can be administered.
Read More
To learn more about wills, see the the "Review last will and testament" section of the Guide.
Helpful Tips
How to start the probate process if the deceased did not have a will
If the deceased did not have a will at the time of their death, then the estate will be settled according to state probate laws.
A family member, close friend, or attorney, acting on behalf of the estate, will need to contact the probate court in the county and state where the deceased lived and submit required court documents, along with a certified copy of the death certificate to request letters of administration.
Probate courts usually provide fill-in-the-blank forms to make the application process easier.
What is a valid will?
Wills are important legal documents that affect the rights of both people and property.
Most states require that wills fulfill certain requirements to prove that the will was official, valid, and made when the creator of the will was in their right mind, and free of coercion from others.
State law outlines the requirements for a valid will.
In most states, this means the will was signed, dated, and witnessed by at least two neutral third parties (such as a notary and an attorney) who are not named in the will.
When neutral parties witness the signing of a will it helps to show that the creator of the will was not under coercion from other parties, and understood what they were doing when the will was created.
A will that was created with the assistance of a lawyer is more likely to be valid than a will handwritten by the deceased (called a holographic will).
If the deceased had a holographic, or handwritten, will, it may be wise to speak with an estate attorney to determine if the will is valid.
Common requirements for a valid will
- The will is in writing (typewritten is preferable to handwritten, as handwritten wills could be easily altered)
- The person who made the will signed and dated it
- There were at least two adult witnesses who also signed the will and dated it
If the will is legally valid in the state where the deceased lived, it will guide the probate process.
The probate court (also referred to as “surrogate’s” and “orphan’s” court) will typically authorize the executor named in the will to administer the estate, and allow the distribution of assets to the beneficiaries named in the will.
Personal Considerations
Did the deceased have a Will?
The will needs to be submitted to the probate court in the county and state where the deceased lived.
The probate court will confirm whether the will was valid, and if so, the will will guide the legal probate process.
If the will names an executor, the executor will need to file an application called the petition for probate of will, along with the will and a certified copy of the deceased’s death certificate.
Contact the probate court in the county and state where the deceased lived for further instructions.
The clerk of the probate court will likely provide paperwork that is needed to open the deceased’s estate and begin the legal probate process.
The estate will be administered and settled according to state probate laws.
Typically, probate courts provide fill-in-the-blank forms to make the probate process easier.
Once the probate process begins, the court will appoint an administrator of the estate.
This person will be responsible for settling the estate, paying bills and debts of the deceased out of estate funds, and giving the deceased’s assets to their heirs and beneficiaries.
If the state needs to appoint an administrator, individuals are typically prioritized in the following order:
- Spouse of the deceased
- Children of the deceased
- Siblings of the deceased
- Grandchildren of the deceased
- The deceased’s next of kin (as defined by state law)
- Additional persons, such as an attorney
The will needs to be submitted to the probate court in the county and state where the deceased lived.
The probate court will confirm whether the will was valid, and if so, the will will guide the legal probate process.
If the will names an executor, the executor will need to file an application called the petition for probate of will, along with the will and a certified copy of the deceased’s death certificate.
Contact the probate court in the county and state where the deceased lived for further instructions.
The clerk of the probate court will likely provide paperwork that is needed to open the deceased’s estate and begin the legal probate process.
The estate will be administered and settled according to state probate laws.
Typically, probate courts provide fill-in-the-blank forms to make the probate process easier.
Once the probate process begins, the court will appoint an administrator of the estate.
This person will be responsible for settling the estate, paying bills and debts of the deceased out of estate funds, and giving the deceased’s assets to their heirs and beneficiaries.
If the state needs to appoint an administrator, individuals are typically prioritized in the following order:
- Spouse of the deceased
- Children of the deceased
- Siblings of the deceased
- Grandchildren of the deceased
- The deceased’s next of kin (as defined by state law)
- Additional persons, such as an attorney
Is the will self-proving?
A self-proving will is a will that fulfills certain state requirements that permit the will to be validated without going through the probate court.
Most states require that a self-proving will include two affidavits signed by witnesses in the presence of a notary.
An affidavit is a signed statement made under oath that can be used as evidence in court.
With respect to wills, self-proving affidavits typically state that the witnesses “testify under penalty of perjury that the will is valid.”
Self-proving wills are accepted in all states except:
- Maryland
- Ohio
- Vermont
- Washington, D.C.
If the deceased lived in a state that does not allow self-proving wills, the will must still be validated in probate court in order to begin the legal probate process.
Each state validates wills according to their own rules and procedures, so review the rules in the state where the deceased lived to learn more about validating wills.
State laws vary with respect to the requirements for a self-proving will.
Check the requirements for self-proving wills in the state where the deceased lived.
If the deceased had a self-proving will, it will not need to be validated in probate court.
This means witnesses will not have to attend a hearing to testify about the validity of the deceased’s will.
The original will will need to be validated in probate court in the county and state where the deceased lived. This means the individuals who witnessed the signing of the will may have to:
- Complete a form from the probate court verifying that they witnessed the signing of the will,
- Submit a sworn statement verifying that they witnessed the signing of the will, or
- Attend a hearing and testify in probate court that the will was valid
Contact the probate office in the county and state where the deceased lived for instructions on submitting and validating the deceased’s will.
A self-proving will is a will that fulfills certain state requirements that permit the will to be validated without going through the probate court.
Most states require that a self-proving will include two affidavits signed by witnesses in the presence of a notary.
An affidavit is a signed statement made under oath that can be used as evidence in court.
With respect to wills, self-proving affidavits typically state that the witnesses “testify under penalty of perjury that the will is valid.”
Self-proving wills are accepted in all states except:
- Maryland
- Ohio
- Vermont
- Washington, D.C.
If the deceased lived in a state that does not allow self-proving wills, the will must still be validated in probate court in order to begin the legal probate process.
Each state validates wills according to their own rules and procedures, so review the rules in the state where the deceased lived to learn more about validating wills.
State laws vary with respect to the requirements for a self-proving will.
Check the requirements for self-proving wills in the state where the deceased lived.
If the deceased had a self-proving will, it will not need to be validated in probate court.
This means witnesses will not have to attend a hearing to testify about the validity of the deceased’s will.
The original will will need to be validated in probate court in the county and state where the deceased lived. This means the individuals who witnessed the signing of the will may have to:
- Complete a form from the probate court verifying that they witnessed the signing of the will,
- Submit a sworn statement verifying that they witnessed the signing of the will, or
- Attend a hearing and testify in probate court that the will was valid
Contact the probate office in the county and state where the deceased lived for instructions on submitting and validating the deceased’s will.
Providers to Contact
Probate Attorneys Near You
Probate attorneys help settle a deceased person’s estate. They can advise you on the probate process and make sure all necessary paperwork is filed with the Probate Court.
