United States Probate Process: Difference between revisions

An individual who left a will is said to have died “testate.” Someone who did not leave a will (or a valid will) died “intestate.” The probate process is essentially the same for both. The complete process may have required many years.  

The probate process began with the filing of a petition by an heir, creditor, or other interested person. A petition is an application to a court requesting the right to settle an estate. The petition was filed with the court that served the area where the deceased owned property. Additional petitions may have been filed in other localities where he owned property or resided. The petition may name the heirs of the deceased, their relationship, and sometimes their residence.  

If a will was available, it was then presented to the court with the testimony of witnesses as to its authenticity. A will is a written and legal expression of the individual's instructions regarding his property at the time of his death. The will usually describes the estate and often gives the names and relationships of heirs or beneficiaries. The affidavit of the witnesses includes the date or proof of death. If accepted by the court, a copy of the will was recorded in a will book or register kept by the clerk of the court. The clerk may have made errors when he transcribed the will, but the original will is often kept in the probate packet (see “probate packet” below).  

The court then appointed an individual to “settle” the estate. The will usually named an individual whom the deceased wanted to serve as “executor” of his estate. The court authorized the executor to proceed by issuing letters testamentary. If there was no will, the court appointed an “administrator” instead, by issuing letters of administration. These letters may include the death date. The date of the letters is sometimes used in place of an actual death date. The administrator or executor was usually an heir or a close friend of the deceased. He may have been a creditor.