INITIAL DOCUMENTS TO OPEN A PROBATE ESTATE
The first step in the probate process is to draft the initial documents the Court will need to understand your loved one's situation. Below is a little bit of information about each document, and why each document is important.
Application for Letters
The application for letters is the foundational document that gives the Court its first look at your loved one's life. It provides the Court with information about the individual, their spouse, their children, and their extended family, if necessary. It tells the Court what types of assets they owned during their life, and if the Court should expect there to be disagreement between the heirs. Examples of all the forms discussed can be found here: JACKSON; CLAY
Consent(s) of the Heirs
In an ideal world, all families would get along, making the probate process much simpler. If that is your situation, we can obtain the consent of the other heirs before filing the paperwork with the Court, and these consents help streamline the opening. Often times we have several tasks in the probate process that require consents, not just the initial paperwork, so your children, brother, sisters, and other family may be asked to sign several consents throughout the process. It is important to note that signing a consent to the probate process does NOT waive a person's right to inherit, it simply tells the Court that the family members have received copies of the paperwork and have no objection to the next step(s).
The Bond
The bonding process is discussed further in a separate section of this handbook. A bond is not required in all estates; if the Last Will and Testament waives the requirement of a bond, or if the only assets of the estate are real property, a bond may not be required. However, most estates do require an initial bond of at least $1,000.00.
Death Certificate
In all estates, the death certificate will be required before the estate can be open.
Last Will and Testament
If there is a Last Will & Testament, you MUST have the original copy, which will be presented to the Court. After the original copy is presented to the Court, it must also be validated, meaning it has the appropriate signatures in the correct places. Only after these two steps have been completed, will the document become valid.
What happens if we don’t get along?
Sometimes, heirs may not agree on who should be the Personal Representative or Administrator or how the estate should be handled. Here’s what happens:
Contesting the application: If someone disagrees with the person applying to be the Personal Representative or Administrator, they can file an objection with the court. This means they are contesting the applicant. The court will then hold a hearing to decide who is best suited for the job.
Family Conflicts: If heirs don’t get along, it can make the process more complicated. The court may appoint a neutral third party, called an public administrator, to handle the estate if family members can’t agree.
Mediation: Sometimes, the court will suggest mediation. This is a process where a neutral mediator helps the heirs come to an agreement without going to court.
Court Decisions: If mediation doesn’t work, the court will make decisions based on the law and what’s best for the estate.
Contested probate matters are more complicated, more expensive, and take longer to work through the probate process. We make every effort to help all the heirs understand the process, however, some situations are beyond our control. If you find yourself working through a supervised probate process, understand that at each step of the way, you will need to ask the Court for permission to take that next step. Often, it will also require that you set a hearing, give notice by mail to the other family members, and ultimately involve the Court at each step.
During the first steps in opening a new probate estate, there is a lot of information to understand, and several documents for you, and potentially your family, to sign. These first steps form the foundation of the entire process, and are important to do correctly so the remainder of your probate process runs smoothly.