As we continue the series on the Probate Process, let’s discuss the process for having the decedent’s will admitted to probate including preparing for and attending probate hearing. The probate hearing is when the court admits the decedent’s will to probate and appoints an independent executor to administer the decedent’s estate.
Preparing for the Hearing
After meeting with your attorney to gather the necessary information and documents, your attorney will begin the process of preparing and filing the Application for Probate of Will and Issuance of Letters Testamentary (the “Application”). In this document, your attorney is essentially asking the court to find that the will is valid and, most importantly, that the independent executor named in the will (i.e. you) be appointed as such.
Once the Application, the original will, and the original death certificate have been filed with the court, your attorney can then set a court hearing to have the will admitted to probate and to have you appointed as independent executor.
Prior to the hearing, your attorney will also draft other pleadings to be submitted to the court, including these documents:
- Proof of Death and Other Facts (the “Proof”): The Proof lays out the facts concerning the decedent (their date of death, marital status, county of residence, age, children, etc.) at the time of their death.
- Order Admitting Will to Probate and Granting Letters Testamentary (the “Order”): The Order is simply the official document by which the court admits the will to probate and appoints you as independent executor.
- Oath of Independent Executor (the “Oath”): The Oath is a document that you will sign in the presence of the court stating that you agree to faithfully execute and perform all the duties of an independent executor.
The Probate Hearing
The hearing itself is a relatively simple process. Generally speaking you will spend less than 5 minutes in front of the judge. Your attorney will ask you a series of “yes” or “no” questions that trace the facts presented in the Proof. After your attorney has concluded their line of questioning, the judge will generally admit the will to probate and appoint you as the independent executor (though they may have some additional questions they’d like to ask). After the hearing, the judge will sign the Order, and you will sign the Proof and the Oath.
As a result of admitting the will to probate, the court will grant you Letters Testamentary (you can request as many as you would like). Letters Testamentary are what identify the independent executor as the legal representative of the estate. They are a single page document that can be provided to those wishing to make sure that you have the proper authority to act on behalf of the estate. Letters Testamentary will be required in dealing with any banks or other financial institutions, credit card companies, and in the sale of any real property owned by the decedent. Once you have the Letters Testamentary, you are free to begin acting on behalf of the estate.
Assuming that the decedent’s will provided for independent administration (as opposed to dependent administration, which will be covered in a later post), the hearing will likely be the one and only time that you will be required to be at the court house and in front of a judge.
In the next part of this series, we will discuss the court-related deadlines that you will need to be aware of as the independent executor. We will also go over the preparation and filing of the Inventory, Appraisement and List of Claims.