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The Legal Process of Probate

A will should go through a process called “probate” in order for it to be considered legally valid, and it is also the procedure how the will is going to be executed. As stated in the American Bar Association, anyone who has something to gain or lose from the will’s probate can be considered as an “interested party’ and can therefore file a petition for the probate of a will. The guidelines regarding the filing for a petition for a probate may differ from state to state and consulting with a lawyer first might be a worthy idea. If you are planning to file for a petition for probate, you should also need to file in the probate court your appointment as an executor. Some lawyers, like the Mokaram firm in Houston, have the professional experience needed to supply you with the help and resources you need.

It is generally understood, however, that the first step is filing the decedent’s will on the probate court at the county in he or she resided. Aside from the will, you should also include any codicils as well as your appointment as executor to the county court. Likewise, you should check whether you are allowed to file if you are not a resident of the state in which the decedent is a citizen of. Next, you should check whether you need to submit an executor’s bond when submitting your petition. This would depend on the practice of the state you are in or if it was requested by the decedent in the will whether sureties are necessary or not.

Make sure you certify that you have indeed sent copies of the petition for probate (and the decedent’s death certificate) to the Division of Medical Assistance. This can be done through certified mail. You have to put into the petition the interested parties, namely: (1) the next of kin and the heirs at law (but don’t mention the beneficiaries written on the will), (2) if there are no heirs at law or if there any bequests of charitable nature then the state attorney general should be listed, (3) when the decedent’s surviving spouse is deemed incompetent or is represented by you, then he or she would need to have a guardian ad litem in order to be listed, (4) when the pretermitted heir has a disability or a minor, then a guardian ad litem is also required, (5) if an interested party is actively serving in the military, then they can be given special provisions that would guarantee their representation. You are then required to send a copy of the court notice of the petition for probate to each of these parties, along with the all the devisees and legatees.

Make sure to indicate that the notice was published and mailed according to the court’s requirements and that you have filed the notice with the county probate court. After no objection to the allowance of the will has been heard from any interested parties, then you can request for the will to be allowed without testimony and it will be approved by court. As stated earlier, rules regarding litigation can vary from each state, thus it would be a wise decision to talk with a lawyer first before proceeding with any filing.

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