Formal Probate

Starting a Formal Probate Case

In order to start a formal probate case, a petition must be filed with the court system. Depending upon whether the deceased left a Will or not, the court form that you’ll use is called either:

Request to Start Formal Probate and Appoint a Personal Representative When There Is a Will(Form P-320); https://public.courts.alaska.gov/web/forms/docs/p-320.pdf

or

Request to Start Formal Probate and Appoint a Personal Representative When There is No Will(Form P-330); https://public.courts.alaska.gov/web/forms/docs/p-330.pdf

The forms are very similar. Each of these forms lay out the basic facts of the situation, such as the name of the decedent, the time and place of death, the names of the deceased’s surviving family members, whether there was a Will or not, plus some other information.

Filing Fee

The fee for filing a probate petition is $200, which can be waived by the court if you meet certain income guidelines. You’ll need to fill out a request and submit it to the court along with your petition.

Exemption from the Payment of Fees (TF-920); https://public.courts.alaska.gov/web/forms/docs/tf-920.pdf

The Probate Petition – Paragraph 1

If you are the person seeking to start the probate and become the personal representative of the estate, Paragraph 1 is where you will place your name. You will also need to state whether you have a legal interest in the estate. Remember, 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.

Paragraph 2 – Information About the Decedent

Paragraph 2 asks for the name of the decedent (the person who has died). You will need to submit a certified copy of the death certificate along with your request. The death certificate will contain the information you need regarding the date of death and the age of the deceased.

Paragraph 2also asks where the deceased was living at the time of death. This is important because the court needs to know whether it has “jurisdiction” to handle the probate case. More on this when we review Paragraph 4 of the petition.

Paragraph 3 – Reason for Formal Probate

Paragraph 3listssome common circumstances that require formal probate procedures. You’ll check the box that applies, or if none apply and there are other reasons, check the box at the end and write the reason you’re asking for formal probate.

No Original Will

For instance, if you cannot find the original Will of the deceased but have a copy, you must use the formal probate procedures. You must prove by clear and convincing evidence that the copy reflects the content of the original Will and that the copy should be accepted by the court. Check the first box.

Dispute Regarding the Will

If there is a dispute regarding the Will, then formal procedures will need to be used. Disputes can arise as to whether the deceased had mental capacity at the time the Will was signed, or that there was fraud, duress, or undue influence involved with the creation or signing of the Will. Or the deceased may have signed several different Wills during his or her lifetime. Typically the latest Will is given priority over previous Wills. But much depends upon the specific language of the Wills. There may also be conflicts between sections of the different Wills that require a judge to interpret what the decedent meant. For either of these situations, check the second box

Dispute Regarding Who Should Serve as the PR

If there is no Will, or there is a Will but it doesn’t name anyone to serve as the personal representative, several persons may have an equal right to serve as the personal representative of the estate. If these people can’t agree, a judge will need to decide. Alaska law contains a list of persons who have priority to become the Personal Rep of an estate. More regarding these priorities later when we review paragraphs 8 and 9.  Here, check the third box.

Change from Informal to Formal Procedures

If there already is or was an informal probate procedure started, an interested person can request that the more supervised procedures of formal probate be used. Formal probate procedures carry more finality than informal procedures. A formal decree following a testacy proceeding (a proceeding to determine whether the deceased left a valid Will) is usually final within 30 days of the entry of judgment. Likewise, beyond the 30-day period, modification of a formal probate order determining heirs is only permitted under very limited circumstances. Check the fourth box.

More Than 3 Years Have Passed Since Death and Other Disputes

If more than 3 years have passed since the death of the deceased, the probate must use the formal procedures. Probate can only be started under limited circumstances, such as the fact that there is still property in the deceased’s name that needs to be transferred. Finally, sometimes the heirs or beneficiaries of the estate will simply disagree with the personal representative’s management of the estate and will request a judge to step in. For either of these situations, check the last box and fill in the blank with the reason for formal probate.

Paragraph 4 - Filing Location (Venue)

Paragraph 4 deals with the location of the court where you file your petition. You can’t file in any court. Alaska’s court system is divided into 4 judicial districts. Each judicial district contains numerous court locations. A probate action must be filed within the judicial district in which the deceased lived.  If the deceased did not live in Alaska at the time of death but owned property here, the probate case must be filed in the court closest to where the property is located.

Paragraph 5 - Time Limits

As mentioned earlier in Paragraph 3, if more than 3 years have passed since the death of the deceased, the probate must use the formal procedures and the case can only be started under limited circumstances, such as if there is property still in the deceased’s name that needs to be transferred. Paragraph 5 addresses this situation.

Paragraph 6 - Existence of a Will

In Paragraph 6, you will need to state whether the deceased left a Will. If you have the original Will, you will need to include it with your petition. It’s possible that the deceased may have already deposited his Will with the court system, in which case the court will retrieve it. You can check the court’s Court View web page to see whether there is a Will registered with the court system. https://records.courts.alaska.gov/eaccess/home.page.2 However, not all Wills are registered with the court system. Registration is an optional, convenient service offered by the court. The one-time $50 fee is much cheaper than paying for a safe deposit box at a bank. In some situations, the original Will may be in the possession of another entity for probate purposes. If the deceased was an Alaska Native and owned restricted Native property, the Bureau of Indian Affairs conducts its own probate. This procedure only applies to restricted Native property held in trust by the federal government. If so, the BIA may possess the original Will and you will need to contact the agency and request a certified copy of the Will. In many areas of Alaska, regional Native non-profit corporations serve as the BIA contact, such as the Bristol Bay Native Association for many Bristol Bay villages. If so, you should contact the appropriate non-profit to see whether it has the original Will. Non-restricted property is still subject to probate in the Alaska court system. The Alaska court system will accept a certified copy of a will.

Under very limited circumstances, you can file a copy of the Will to be probated, but you must then be prepared to present very strong evidence as to what efforts you made to locate the original Will and why the copy should be accepted.

Paragraph 7 - Current Personal Representative

If you are filing the first probate petition concerning the deceased’s estate, you’ll want to check the first box listed in Paragraph 7.

Sometimes, a probate action is started but never finished. In such circumstances, the court can close the case and the personal representative is dismissed. Or the PR may have thought everything was completed and later discovered additional property. These circumstances may require that the probate be re-opened using formal procedures. Check the second box.

The third box would be checked if you are seeking to replace a currently serving PR.

Paragraphs 8 & 9 - Priorities for Appointment as the Personal Representative

Before completing Paragraph 8, be sure to review Paragraph 9 of the petition, which lists the people who have priority to serve as the personal representative of the estate. If you are the person named as the PR in the deceased’s Will, you have top priority and should check the first box in Paragraph 8. If there is no Will, or the Will did not name a personal representative, or the person named is unable or unwilling to serve, you will need to check one of the other boxes listed.

Paragraph 9 - People with Greater or Equal Right to be Appointed as the Personal Representative

If you are seeking to become the PR but there are other people with an equal or higher priority, Paragraph 9 requires you to list the names of those people. For instance, if your unmarried father died without a Will and had three children, each child would have equal right to serve as PR. If your brothers and sisters agree that you should serve as PR, have them sign a written consent form, called a Nomination for Appointment of Personal Representative With Equal or Lower Priority Form p-306.  If they aren’t available or won’t give their consent, you will need to convince the judge that you are the person best able to serve as PR.

Paragraph 10 - Bond

Another issue that needs to be addressed by the PR is the question of “bonding.” Normally, if the deceased named a PR in a Will, the Will would state the PR does not need to file a bond. A bond is a cash payment or pledge of property which guarantees that the PR will properly fulfill his or her duties. If the PR mismanages the estate or improperly distributes property, an aggrieved party can file a claim against the bond and possibly be compensated for the damage caused by the PR. As an example, let’s say the PR sold the deceased’s car and kept the cash without telling the beneficiaries or heirs. If the PR posted a bond, the heirs might recover the money from the bond that was posted with the court.  If there is a Will, there is usually specific language that waives the bond requirement. If not, as the person seeking to become the PR, you can ask interested persons to waive the requirement by signing a Waiver of Bond Requirement, P-334. 

If you are not excused from bond, you must file a bond equal to one of the following:

• The amount set out in the Will of the person who died;
• The amount set by the court; or
• Your best estimate of:
  • the value of the personal property (not including real property) of the person who died; and
  • the income that will be generated by all of the property (including real property) of the person who died during the next year.

Otherwise, you will need to ask the court to waive bond.

Paragraph 11 -  Survivors

Paragraph 11 is straightforward. In this section, you must list the deceased’s spouse, children, and parents and indicate whether they are still alive or not. Children who were legally adopted by the deceased are considered to be children of the deceased and must be listed. Children of the deceased who were adopted out of the family do not need to be listed unless the adoption decree specifically stated that the adopted child’s inheritance rights were preserved. If a spouse, child, or parent is deceased, you should indicate that on the form and provide a date of death, if it is known. If the deceased left a Will, anyone named as a beneficiary must also be listed.

Paragraphs 12 and 13-  Notice, including Demand for Notice

Once the petition is filed, a copy must be sent to all interested persons who may have a legal interest in the estate. This would include people named as beneficiaries in the Will, family members, and other people or businesses that filed a Demand for Notice with the court system. You can check to see whether anyone has filed a Demand for Notice by checking the court’s website and searching under the deceased’s name. Or the court clerk can tell you whether a Demand for Notice has been filed or not. If a demand has been filed, you’ll need to list the person or entity in Paragraph 12 of the petition.

Signature Page and Certificate of Service

Once you have completed the petition, you need to sign it in front of a notary public or the court clerk. You will also need to sign the last page of the petition, which contains a Certificate of Service.

 

Certificate of Service

The Certificate of Service confirms that you have provided a copy of the petition to all persons entitled to notice, such as those who filed a demand for notice and those with a greater or equal right to appointment as PR. If you are asking the court to replace a current PR, you must also provide a copy to that person. In the certificate, you must indicate the date you provided notice and whether you mailed a copy of the petition or hand delivered it.

This completes our review of the petition. But you’re just getting started, so please see the next section for additional information.  You’re not done yet!