What is the First Step to Probate an Estate?

 

By Jeremy D. Eveland, MBA, JD

 

August 4, 2006

 

              An application to start a probate proceeding in court is filed by the personal representative named in the will, or, when there is no personal representative because the decedent (person who passed away) did not leave a will, the person who has priority asks the court to be named as the personal representative to administer the estate. Usually, the personal representative hires an attorney to file the initial petition and guide the personal representative in each action they take to make sure that they are not violating any of their fiduciary duties.

 

              Acting as a personal representative can take a lot of time and work. This is why the assistance of competent counsel becomes invaluable.  If you have a lot of time on your hands, then you could do all of the research on your own to make sure you are doing everything right and following the law.  If you are busy, you will need the help of an attorney.

              Now, the initial petition through the court is for a formal appointment to make the personal representative able to act as the personal representative and also to show acceptance of the will. If there is no will, then the court sets a hearing to make a legal determination who the heirs of the estate are and to appoint the personal representative of the estate.

             If there is no personal representative or no one willing to take the responsibility to administer the estate, sometimes a creditor to the estate will initiate the probate proceeding. This is not very common, but it does occur sometimes. The most important thing to know about probate is that in order for the actions of the personal representative to become legally binding and legitimate, a court having proper jurisdiction must formally appoint the personal representative and then the personal representative is empowered to act in that capacity.
 

Conclusion

                   If a loved one has placed you as their personal representative in their will, you don't need to worry or have fear.  Simply consult with a licensed attorney and they will be able to help you down the road to probate. Thanks for reading this article, I honestly hope it has given you a place to start.