What goes on in the probate of an uncontested will?

UPDATED: Jul 17, 2023Fact Checked

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Jeffrey Johnson

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 17, 2023

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UPDATED: Jul 17, 2023Fact Checked

Typically the person named as the deceased’s personal representative (a more formal term is Executor or Executrix) goes to an attorney experienced in probate matters, who then prepares a petition for the court and takes it, along with the will, and files it with the probate court.

The person seeking to have the will admitted to probate, or that person’s attorney, must notify all those who would have legally been entitled to receive property from the deceased if the deceased had died without a will (intestate succession), plus all those named in the will. The notice will inform them of the will and give them an opportunity to file a formal objection to admitting the will to probate.

A hearing on the probate petition is typically scheduled several weeks to months after the matter is filed. It may be necessary to bring the persons who witnessed the deceased’s signature on the will to the hearing to testify. Whether this will be necessary depends on several factors: on the laws of the state, sometimes on who the named beneficiaries are, how long before the death the will was signed, whether the will was prepared by an attorney, who supervised the signing (execution) of the will, and/or whether the will was executed with certain affidavits.

If the court receives no objections to admitting the will to probate, and if everything seems in order, the court will approve the petition, appoint the personal representative, order that taxes and creditors be paid, and requires the personal representative to file reports with the court to assure all the deceased’s property is accounted for and distributed in accordance with the terms and conditions of the will.

Case Studies: Probate of Uncontested Wills

Case Study 1: The Smooth Probate Process

Mary, the personal representative named in her mother’s will, engages an experienced probate attorney to guide her through the process. The attorney prepares the necessary petition and files it with the probate court, along with the original will. Mary, with the assistance of her attorney, sends notice to all potential heirs and beneficiaries, giving them an opportunity to object to the probate.

Since no objections are received, the court schedules a hearing several weeks later. Mary, accompanied by the witnesses who saw her mother sign the will, attends the hearing. The court reviews the documents, ensures all legal requirements are met, and approves the petition. Mary is appointed as the personal representative, and the court instructs her to fulfill her duties, including paying taxes and creditors.

Case Study 2: Minor Technicalities

John’s will is uncontested, but it contains a minor technicality. His attorney failed to include one required affidavit. John’s personal representative, his sister Sarah, consults an attorney who advises her to file a supplemental petition to correct the error before the hearing. Sarah follows the attorney’s advice, and the court allows the corrected affidavit to be included.

At the hearing, Sarah and the witnesses attend and testify about the proper execution of the will, including the newly added affidavit. The court reviews the documents and finds that all requirements are met. The petition is approved, and Sarah is appointed as the personal representative, with the obligation to fulfill all necessary reporting and distribution tasks.

Case Study 3: Unrepresented Personal Representative

In this case, Mr. Johnson, the personal representative named in his uncle’s will, decides to handle the probate process without an attorney. He files the petition and notifies all interested parties as required. However, he overlooks a crucial aspect of the process: he fails to bring the witnesses to the hearing.

During the hearing, the court realizes the absence of witnesses and informs Mr. Johnson that their presence is necessary. The court reschedules the hearing to allow Mr. Johnson to gather the witnesses and present their testimony. Although it causes a delay, the court ultimately approves the petition, appoints Mr. Johnson as the personal representative, and provides him with instructions to comply with reporting and distribution requirements.

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Jeffrey Johnson

Insurance Lawyer

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Insurance Lawyer

Mary Martin

Published Legal Expert

Mary Martin has been a legal writer and editor for over 20 years, responsible for ensuring that content is straightforward, correct, and helpful for the consumer. In addition, she worked on writing monthly newsletter columns for media, lawyers, and consumers. Ms. Martin also has experience with internal staff and HR operations. Mary was employed for almost 30 years by the nationwide legal publi...

Published Legal Expert

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

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