If the deceased person had an attorney draw up their will, you might want to start with them. Even though they may not be able to represent you in the probate proceedings, they can offer advice and recommend someone to work with you. Most probate attorneys provide a free initial consultation, so it’s worth talking to someone even if you ultimately decide to go it alone. Keep in mind that if you’re appointed executor, your legal bills will typically be paid by the estate. In some courts, if you elect to proceed through probate without an attorney, you’re required to give the court notice and provide evidence of your competency to handle things on your own.
If the deceased person doesn’t have a safe or other secure location where they typically stored important documents, it may be difficult to locate the original will. Some courts have additional paperwork and petitions you can file requesting the court allow you to submit a photocopy, if it’s all you can find. Get help from an attorney if you have a photocopy but can’t locate the original will.
Some states have more streamlined procedures if the deceased person had relatively few assets. In some states you must have the clerk acknowledge the will before you can proceed through the rest of the probate process. In other states, probate is opened at the same time the will is admitted.
The CDC has a directory with contact information for the vital records office for every US state and territory. Go to https://www. cdc. gov/nchs/w2w/index. htm and click on the appropriate link. If the person died outside the US, contact the consulate or embassy in the country where they died.
This part of the probate procedure varies among states. In some states, you must open probate first, while in others, you can open probate and request letters testamentary at the same time. [7] X Research source
In some states you only have to notify those listed as beneficiaries in the will. In other states, you must notify all surviving immediate family even if they are not included as beneficiaries.
If you don’t have an attorney, call the clerk’s office before you go and find out how much you’ll owe in fees to open probate, and what methods of payment are accepted. Fees to open probate vary widely among states. In some states, the total fee is a percentage of the total value of the estate. This fee isn’t due until you start administering the estate and take a complete inventory of the estate’s assets. [10] X Research source
It also isn’t guaranteed that the court will approve the person named in the will just because they are named in the will. There are a number of qualifications to be appointed executor of an estate, and if the person named doesn’t meet those qualifications, the court may refuse to appoint them. For example, suppose a man nominates his son as his executor in his will. The man dies tragically in a car accident, and his son is only 15. Since minors can’t be executors, the court would require surviving family members to choose someone else.
You must fill out a form naming your agent. They typically must be over 18 and able to receive documents on your behalf. Many states require out-of-state executors to post bond. However, this requirement is typically waived if you have an in-state agent for service of process.
If a training course is required, the court clerk will give you information about it. You’re typically exempt from this requirement if you are a professional, such as a lawyer or an accountant, who has experience acting as a fiduciary. Even if a course isn’t required, ask if there is one available that you can take to familiarize yourself with your duties. Being the executor of an estate is a serious responsibility, and not one to be taken lightly.
Some states require you to make this affirmation in court. In others, you can take the oath in front of the clerk or a notary public. In addition to the oral oath, you typically must sign a court document that includes the same oath.
Out-of-state executors are most likely to be legally required to post a bond. A person may specify in their will that they want the executor of their estate to post a bond. Likewise, they can waive any legal requirement for their executor to post a bond.
The preliminary inventory is necessary for the court to decide whether letters testamentary are required. The court issues letters testamentary only if there are assets that you cannot dispose of without them. For example, if the deceased person owns a house, you cannot sell that house or give it to the rightful beneficiary in the will unless you have the power to sign on behalf of the deceased person. Letters testamentary give you that power. In most states, if you are the deceased person’s spouse and are also acting as executor, you don’t need letters testamentary.
You may also be required to submit the names of beneficiaries and proof that they have been notified of the probate of the estate.
These are form documents that are typically available from the court, if you aren’t represented by an attorney.
It’s a good idea to take a manila envelope or folder with you to carry the letters. These are important legal documents, so you need to keep them safe.
Everyone who requires a letter will keep the letter in their files. Make sure you have plenty of copies to go around. If you run out of copies, the clerk likely won’t issue you more.
