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Probate: Where to Begin

Probate can be simply described as a means of transferring title to property. Obviously, once a person dies, that person is no longer able to transfer title to property titled in their name. Probate is a procedure for transferring title to the decedent's property to the persons entitled to it.

It therefore follows that only property titled in the decedent's name alone is a part of the decedent's probate estate and subject to probate. For example, if real estate is owned jointly with rights of survivorship, the real estate does not have to be probated because it passes directly to the survivor because of the nature of the deed. Likewise, a jointly held bank account with the right of survivorship passes directly to the survivor according to the contract with the bank with no probate being necessary. The beneficiary of an insurance policy receives the proceeds without those proceeds being subject to probate because ownership is determined by the insurance contract. An automobile owned in the decedent's name alone is an exception to this rule because of a special statute which allows the Secretary of State to transfer title to the heirs if there are no probate proceedings started.

Many people believe that by having a Will they will avoid probate. While a Will may make probate easier, there still must be probate of those items titled in the decedent's name alone. The Will tells the court which people should be entitled to the decedent's estate and probate passes title to those people. A living trust, on the other hand, can avoid probate if all of the decedent's assets are owned by the trust. Upon death, title to those assets pass according to the terms of the trust without need of probate.

The first decision which needs to be made when one is about to commence probate proceedings is whether to use informal proceeds or formal proceedings. Informal and formal proceedings are different ways of having a will admitted to probate and a personal representative appointed. Once a personal representative is appointed under either method, administration will proceed in an unsupervised manner. Additionally, you may chose to have the estate proceed by supervised administration by requesting supervised administration in a formal proceeding.

Informal proceedings are commenced by filing an Application for Informal Probate and/or Appointment of Personal Representative with the court. This is a request that the probate register admit the will, if any, to probate and appoint a personal representative. If the application is granted, the register will sign a form called Register's Statement admitting a will and/or appointing a personal representative. Once this is accomplished and the personal representative qualifies by filing an Acceptance of Appointment and any required bond, the register will issue Letters of Authority for Personal Representative. The personal representative will proceed with unsupervised administration until the estate is ready to be closed. A will informally admitted to probate may be challenged at any time in a formal testacy proceeding.

Formal proceedings are commenced by filing Petition for Probate and/or Appointment of Personal Representative with the court. A hearing date is given and interested persons must be served with notice of hearing. After hearing, the probate judge will enter an order called Order of Formal Proceedings. This order will admit any will, determine who the heirs of the deceased may be and appoint a personal representative. Once this is accomplished and the personal representative qualifies by filing an Acceptance of Appointment and any required bond, the personal representative will proceed with unsupervised administration until the estate is ready to be closed.

As part of the formal proceeding, the petitioner may request supervised administration. Supervised administration may be requested at any time during estate administration in a formal proceeding. Supervised administration should not be granted automatically upon request. In cases of no will or where a will is silent on whether the estate should or should not be supervised, necessity must be shown before supervised administration is granted. Supervised administration is granted as part of the entry of the Order of Formal Proceedings. In all requests for supervised administration, the court must decide (1) whether the decedent left a will and its validity, (2) the personal representative's priority and qualifications to serve, and (3) the heirs of the decedent. If supervised administration is granted, the personal representative unless otherwise ordered by the court will proceed with the same powers as a personal representative who is not supervised with the notable exception that a supervised personal representative may not make any distributions without court order. The responsibilities of the personal representative are greater since they are required to file with the court and serve upon interested persons additional documents.

Informal and formal proceedings are two ways to accomplish the same things.  By using either, you can have a will admitted to probate and a personal representative appointed. Informal proceedings are less complicated and generally take less time to complete.  The results, however, can always be challenged in a formal proceeding.  Thus, you do not have the finality gained by a court order obtained through formal proceedings.  Formal proceedings require a court hearing. Notice of that hearing must be served upon interested persons. Formal proceedings are more complicated and generally take longer.  They do give you a greater degree of finality for matters covered by the order.  Supervised administration can be described as a series of formal proceedings from beginning to end.

Generally, if there is no dispute over the admission of the will and appointment of a personal representative I would begin with informal proceedings.  If it is likely that the will may be contested at some point or the appointment of the personal representative contested, I would consider using formal proceedings.  There would seem to be very little advantage for requesting supervised administration since you can obtain court orders when necessary by using formal proceedings for a particular issue.

An attorney should be consulted and retained to handle the probate proceedings.  Estates are almost always complicated enough to justify such professional services.  In most cases in which someone tried to probate an estate without legal assistance, it has been a disaster and the decision was regretted.

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