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What is a Petition for Probate? Definition & FAQs

When a loved one dies, you’ll need to file the will with the county, as well as a petition to open probate. Learn more about petitions for probate here.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

What is a petition for probate? If you have been nominated as the Executor to someone’s estate, it means that you have some administrative duties when they pass away. Navigating these duties while also navigating the loss of a loved one can feel overwhelming. That’s why it’s a good idea to prepare ahead of time if you’ve had the courtesy of a heads up. One of the first things you’ll need to do as an estate Executor is to file a petition for probate. This guide will explain what this is, why it’s important, and how to do it. 

What is a Petition for Probate?

Probate is a legal process that first verifies the validity of a deceased person’s Will, and then oversees the distribution of that person’s property and assets to their beneficiaries. Someone must file a petition for probate, along with the Will, with the county probate court to initiate this process. 

If you were nominated as the Executor in a decedent’s Will, then you must file a Petition for Probate of Will and Letters Testamentary.

It’s also helpful to be informed of some variations that may occur. If your loved one passes away with a Will, but there is no Executor, then you would instead file a Petition for Probate of Wills and Letters of Administration with Will Annexed. This can happen when an Executor wasn’t named, the named Executor passed away, or is unable or unwilling to serve. 

If your loved one passed away without a Will, then a Petition for Letters of Administration is filed. 

What Does a Petition for Probate Do?

These petitions are used to initiate the administration of an estate. The way in which the estate is administered changes based on the type of petition used. 

The Petition for Probate of Will and Letters Testamentary is requesting for the court to validate the Will and formally appoint the Executor. Once this is done, the court authorizes the Executor to oversee the process of distributing assets and property to beneficiaries per the instructions provided in the Will.

The Petition for Probate of Wills and Letters of Administration with Will Annexed is requesting for the court to validate the Will and formally appoint an Administrator. The Administrator generally shares the same duties of an Executor. However, they are selected by the court rather than nominated by the decedent. This is because an Executor was not named or is otherwise unavailable. The Administrator will distribute assets and property to beneficiaries per the instructions provided in the Will.

Last but not least, a Petition for Letters of Special Administration is requesting that the court initiate the probate process in the absence of a Will. The court will determine how assets should be distributed using intestate succession laws, also known as next-of-kin laws. The court-appointed Administrator oversees the execution of court decisions. 

When Should a Petition for Probate Be Used?

A petition for probate must be filed when no exceptions apply and an estate must go through the formal probate process.

These exceptions vary by state. In California, for instance, any decedent’s estate exceeding $166,250 in value must go through the formal probate process. If the estate is valued less than this threshold, then a Small Estate Affidavit (a simpler, quicker alternative to probate) can be filed. 

There are also some types of assets and property that can transfer to beneficiaries outside of probate and thus help reduce the total estate value. Examples include assets with beneficiary designations, assets and property held within a Trust, as well as property deeds with survivorship rights or transfer-on-death mechanisms. Surviving spouses of a decedent may also be able to file a Spousal Property Petition. 

How Do I File a Petition for Probate?

If it’s determined that an estate must go through probate, then it’s time to file the petition for probate. Again, this should be done by the Executor if they were named in the Will. If there is no Will, or there is no named Executor, then the appropriate petition should be filed by an appropriate party, typically the surviving spouse, parent, adult child, or sibling.

Here are the steps for filing a petition for probate:

1. File the Will: When an individual passes away, the first thing that needs to happen is the filing of the Will. It doesn’t matter if the estate will go through probate or not; if the Will exists, it must be submitted to the court. The person in possession of the Will can do this. Alternatively, if the Will names an Executor, the Will can be forwarded to the Executor to file the Will.  The Will must be willed in the county in which the decedent lived. At this time, you’ll obtain the petition to open probate.

2. Confirm the Executor: Here, the Executor or personal representative of the estate must be confirmed. If the Will nominates an Executor, then that individual must accept or reject the position. If the Executor rejects, or the Will does not name an Executor, or a Will does not exist, then someone can offer to act as personal representative.

3. Notarize the Petition: Be careful not to sign the petition for probate. Most courts require that you have the form notarized, so make sure to schedule an appointment. You’ll sign the form in the presence of the notary.

4. File the Petition Form and Will to Court: Once you have your form notarized, it’s time to complete the filing of the petition and the Will. Note that you must also pay a filing fee, which varies from one county to the next. After this step is complete, you have formally requested the probate court to open probate. 

Learn More About the Probate Process

What is a petition for probate? If you began reading this guide with this question in mind, you should now have a better understanding of why one must file a petition for probate. Probate is not a court-initiated process. Someone representing the decedent, often the Executor or other representative, must file paperwork that formally requests the probate court to initiate probate proceedings. If a Will is available, then the Will is also filed at this time. 

To learn more about the Probate process, read our guide. You can also learn more about what to expect during the Probate process here

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