Formal Probate

Authored By: Alaska Legal Services - Anchorage LSC Funded

The Formal Probate Process: When to Use Formal Probate

When to Use Formal Probate

Authored By: Alaska Legal Services - Anchorage LSC Funded
Filing Formal Probate Filing Formal Probate

Filing Formal Probate

Filing Formal Probate

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.

Supervised Administration

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.