Alaska Court System Self-Help

Formal probate is a court process that allows the Personal Representative to transfer the property of a person who died to the persons who are supposed to receive it with more court involvement. A formal probate is usually used for complicated issues such as challenges to the Will, disputes between beneficiaries or heirs, or supervision of the Personal Representative. A formal probate can be long and expensive and can turn into litigation. The parties to the probate case may request discovery, mediation and a jury trial.

You can watch short presentations on Introduction to Filing a Formal Probate Case and When to Use Formal Probate.

Any interested person can ask the court to open a formal probate or change an informal probate to a formal probate. This could include the Personal Representative, a beneficiary, an heir, a spouse or a creditor.

If any of the following apply, you must file a petition for formal probate and cannot use the informal probate process:

• You want to appoint a Personal Representative who does not have priority.
• You can't find the original Will.
• The Will is not self-proved.
• The person who died made more than one Will but the last Will does not cancel (revoke) the earlier Wills.
• In most cases, if it has been more than three years since the person died.
• You want to object to the appointment of the Personal Representative.
• You want the court to supervise the Personal Representative.
• You want to set aside or stop an informal probate.
• You want to change the informal probate into a formal probate.
• You want to challenge the Will.

These are the most common reasons. You may also want to open a formal probate for other reasons such as doubts about the person's death or finding a new Will. If you think that you need to open a formal probate, it is a good idea to talk to a probate lawyer.

You can watch a short presentation on When to Use Formal Probate.

This section covers what to do when you want to (1) open a formal probate and (2) appoint a Personal Representative. If you want to do only one of these things or if one of these things has already been done, it is a good idea to talk to a probate lawyer.

You will need to gather the following documents and file them with the court:

• Certified copy of the Death Certificate. Some judges will accept a letter from the funeral home if the death certificate is not yet available.
• Original Will if the person who died made a Will. If you are not sure if the person made a will, you will need to try to find it by looking in some of the common locations.

You will need to prepare the following documents and file them with the court. The forms you use depend on whether the person who died made a will:

Person Who Died Made a Will

• Request to Start Formal Probate and Appoint a Personal Representative When There is a Will, P-320 [Fill-In PDF]
• Order Starting Formal Probate and Appointing PR When There is a Will, P-321
• Acceptance of Duties and Letters Testamentary, P-335
• Proof of bond if the bond is not waived by the Will, or
  • A separate Waiver of Bond Requirement, P-334 signed by each devisee named in the will.
• Filing Fee

Person Who Died Did NOT Make a Will

• Request to Start Formal Probate and Appoint a Personal Representative When There is No Will, P-330
• Order Starting Formal Probate and Appointing PR When There is No Will, P-331
• Acceptance of Duties and Letters of Administration, P-336
• Proof of bond or
  • A separate Waiver of Bond Requirement, P-334 signed by each heir.
• Filing Fee

If the court sets a hearing on your petition, you must also give proper notice of the hearing before the court will open the probate.

You can watch a short presentation on Filing the Formal Probate Petition.

You must file a document to ask the court to open a formal probate and appoint you as Personal Representative. The form you file depends on whether the person who died made a Will.

If the person who died made a Will, you can file:

• Request to Start Formal Probate and Appoint a Personal Representative When There is a Will, P-320

If the person who died did NOT make a Will, you can file:

• Request to Start Formal Probate and Appoint a Personal Representative When There is No Will, P-330

* Important: You must sign a verification under oath saying that all of these statements are true and complete to the best of your knowledge and belief. You can do this before a notary or a court clerk.

If you have any questions, you should talk to a probate lawyer.

You can watch a short presentation on Filing the Formal Probate Petition.

You must file a document called an "Order" which the court will sign when it opens the formal probate and appoints you as Personal Representative. The form you file depends on whether the person who died made a will.

If the person who died made a Will, you can file:

• Order Starting Formal Probate and Appointing Personal Representative When There is a Will, P-321

If the person who died did NOT make a Will, you can file:

• Order Starting Formal Probate and Appointing PR When There is No Will, P-331

Do not sign the Order. Leave a space for the court to sign the Order when it opens the probate. If you have any questions, you should talk to a probate lawyer.

You can watch a short presentation on Filing Additional Forms in Formal Probate.

You must file a document that

1. states you accept your duties as Personal Representative, and
2. proves that you have the right to be the Personal Representative.

The form you file depends on whether the person who died made a will.

If the person who died made a Will, you can file:

• Acceptance of Duties and Letters Testamentary, P-335

If the person who died did NOT make a Will, you can file:

• Acceptance of Duties and Letters of Administration, P-336

Sign the Statement of Acceptance before a notary. Do not sign the Letters. Leave a space for the court to sign the Letters when it appoints you as Personal Representative.

If you have any questions, you should talk to a probate lawyer.

You can watch a short presentation on Filing Additional Forms in Formal Probate.

Read more about filing a bond or waiving bond.

If you asked for a hearing in your Request to Start Formal Probate and Appoint a Personal Representative, the court will schedule one and mail the time and date to you. You must give notice of the hearing to the appropriate people and file proof with the court before the hearing date:

Notice of Hearing, P-339

If you asked for an order without a hearing in your Request to Start Formal Probate and Appoint a Personal Representative and the court agrees, it will mail you the signed Order and Letters. The court is more likely to open a formal probate without a hearing if all of the heirs and devisees of the person who died agree that a hearing isn't needed.

You can give the court documents that support your Request to Start Formal Probate and Appoint a Personal Representative. It is a good idea to file these with the court before the hearing. You can also testify or have others testify about your Request to Start Formal Probate and Appoint a Personal Representative. The court will also listen to other interested persons who might have something to say about your Request to Start Formal Probate and Appoint a Personal Representative. Usually, the court will make an order right away but sometimes it will take time to make a decision.

You must give notice of the hearing for formal probate to the following:

• Anyone who has filed a Demand for Notice.
• The spouse of the person who died.
• The children of the person who died.
• The heirs of the person who died.
• The devisees of the person who died.
• All Personal Representatives named in the Will (if any) of the person who died.
• Anyone serving as Personal Representative.
• Any person who has (or claims to have) the same right or a higher right to serve as Personal Representative as you do.

You must also publish notice in a newspaper having general circulation in the judicial district where the hearing is to be held at least once a week for three weeks in a row, ending at least 10 days before the hearing to the following:

• All unknown persons who might have an interest in the formal probate.
• All known persons whose addresses are unknown who might have an interest in the formal probate.

You can use this form to give notice of the hearing to the people listed above and file proof with the court before the hearing date:

Notice of Hearing, P-339

In certain cases (for example if there are doubts about whether the person has died), you may need to do more. It is a good idea to talk to a probate lawyer before filing a formal probate.

You must mail the notice at least 14 days before a hearing. If you are publishing a notice of a court hearing in a newspaper having general circulation in the judicial district where the hearing is to be held (you must publish at least once a week for three weeks in a row), the last publication date must be at least 10 days before a hearing. You must file proof of giving notice with the court on or before the hearing date. You can use this form to give notice of the hearing to the people listed above and file proof with the court before the hearing date:

Notice of Hearing, P-339

If you have not opened any probate during the three years, you have the following options:

• You can ask the court to "determine the heirs" of the person who died using the rules of intestacy. This is a simple proceeding in formal probate which requires notice but not usually a hearing if all of the heirs consent to the proceeding. The court will issue an order that lists the rightful heirs of the decedent. This order can be used to transfer some types of property to the heirs.
• You can ask the court for a limited testacy proceeding in formal probate if the person who died left a Will. The court will decide who should inherit the property of the person who died under the Will. This requires notice and usually a hearing.
• You can ask the court to appoint a Personal Representative with very limited powers in either informal probate or formal probate. The Personal Representative can transfer the property of the person who died to the rightful persons. However, he or she has no power to do anything else such as deal with creditor claims, wrap up business affairs or file other documents.

You may be able to open a probate after three years for a few other reasons. However, if it has been more than three years since the person died, it is a good idea to talk to a probate lawyer.

Once the court appoints a personal representative, that person has many responsibilities. For information on how to use the Letters and your duties as Personal Representative , see Personal Representative Duties and Responsibilities.