In general, probate can be divided into two types of procedures - “informal” and “formal.” The process for each can be similar, but formal probate requires the involvement of a judge and one or more hearings in court. Formal probate also requires more advance notice to “interested persons.” An “interested person” is any person or entity with a legal interest in the estate, such as a spouse, children, beneficiaries named in a Will, heirs, a personal representative nominated in a Will, and creditors.
When would formal probate procedures be necessary?
Formal probate may be required due to many situations. There may be a question as to whether the decedent had a valid Will at the time of death or whether she died intestate (without a Will). Formal testacy proceedings permit beneficiaries to establish whether a particular document is the decedent's Will. Formal procedures also allow heirs to establish that there was no Will. Another situation that might require formal procedures would occur when there is more than one Will and there is a question concerning which Will controls. There may also be a need for formal procedures due to a dispute as to who should serve as the personal representative of the estate. Or, if more than 3 years have passed since the death, formal procedures must be used, and only under limited circumstances.
Finally, formal procedures are used for “supervised administration.” This is a process in which the court is involved at each stage. Distributions from the estate are not permitted without a court order. The estate must be closed with a court order that reviews the estate administration and approves the final settlement. If restrictions are imposed upon the personal representative, they will appear on the Letters Testamentary or Letters of Administration, which is the name for a court order that appoints a person as the personal representative.
The next section reviews the actual form that is used to start a formal probate case.