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Formal Probate

What is formal probate?

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.

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Who can file a petition for 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.

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When do I have to use the formal probate process?

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

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.

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How do I get started?

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:

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

Person Who Died Did NOT Make a Will

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.

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How do I request that the court open the formal probate and appoint the Personal Representative?

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:

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

* 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.

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How do I prepare an Order for Formal Probate and Appointment of Personal Representative?

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:

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

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.

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How do I prepare the Letters and Statement of Acceptance?

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:

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

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.

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How do I file bond?

Read more about filing a bond or waiving bond.

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What should I do after I file the petition?

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 Adobe Acrobat PDF logo

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.

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What happens at the hearing?

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.

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Who do I have to notify of the initial hearing?

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

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:

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 Adobe Acrobat PDF logo

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.

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How far in advance do I have to send notice of a court hearing?

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 Adobe Acrobat PDF logo

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What do I do if the person died more than three years ago?

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

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.

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Once the formal probate starts, what happens next?

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.

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Rev.10 September 2015
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