Probate – Beginning the Process

Finding the Will

When a person dies, the first thing that must be done concerning the distribution of his property is to determine whether he left a will. In most cases, the spouse or children will know or have an idea that there was or was not a will. If not, a search of the deceased’s papers and safe deposit box may offer some leads. If the deceased had a lawyer or saw one before his death, the lawyer should be asked if he has any knowledge of a will.

In many states, it is a crime to conceal a will, and most have laws requiring anyone in possession of a will to submit it to the Probate Court within a certain period (often thirty days) after a person’s death, with penalties for failure to do so.

Rather than conceal a will, however, if someone in possession of a will does not want it probated, he or she is more likely simply to destroy it. This is also a crime, but it is almost impossible to prove that a person has concealed or destroyed a will unless someone actually saw him or she do it. There are, unfortunately, a number of cases in which there was a strong “common sense” inference that a will had been destroyed but no way of proving it, and no copies or other evidence to show what it said.

Starting the Probate of the Estate

When the will is located, it (the original) is sent to the Probate Court in the appropriate district of the state where the person was domiciled (had his permanent residence) at the time of his death. If the original is lost or destroyed, a verifiable copy may be submitted to the Probate Court, but the parties seeking to have the copy allowed must be prepared to satisfy the court that there was no funny business. Submitting the will to the Probate Court, by itself, does nothing other than place the will on record with the court. In order for any action to be taken on the will, someone, usually the executor named under the will, must ask (“petition”) the Probate Court to approve the will as the last will of the deceased. If for some reason the executor does not offer the will for probate, any interested party, even a creditor of the deceased, may do so.

Petitions for the probate of a will are relatively simple forms available at the Probate Court for the district or county of the decedent’s domicile. This is not to say that there are no complexities, but the request (petition) for probate itself is the easy part. In substance, it simply asks the court to allow the will that has been submitted to the court as the decedent’s last will.

If there was no will, then the petition takes a different form. It suggests to the court that the decedent left no will and asks that a person (named in the petition) be appointed as administrator to represent the deceased’s estate. As discussed later, if there is no will, the deceased’s probate property is distributed according to the laws of the state. Whether or not there was a will, most states require that the petition include the names and addresses of all of the “heirs at law” (generally meaning those persons who the law says will inherit if there is no will). Usually, this would be spouse and children, or parents and siblings.