January 24, 2014
Sometimes clients come to me because they have tried to deal with Probate Court themselves, but the Court returned their paper work and directs them that a formal appointment proceeding is required and to go find a lawyer. So what is this formal appointment thing? And when is it necessary? And why do you need a lawyer?
It is definitely preferable to administer estates on an informal basis in the Probate Court. Informal appointment means that the familiar trappings of litigation, such as a summons, service of process, and court hearings will not be required to get appointed as a Personal Representative. Unfortunately, informal appointment is not possible in all cases. In some cases, you must instead proceed formally.
Formal appointment is required in the following circumstances:
- 1. The Decedent did not leave a Last Will, surviving family members cannot agree on who will serve as the Personal Representative, and there is no single person who has priority to serve, or
- 2. The Decedent left a Last Will designating a particular person to serve as Personal Representative, but that person either cannot or will not serve, there is no alternate designation in the Last Will (or there is an alternate but that designee cannot or will not serve as well), and there is no single person who has priority to serve.
So what does formal probate require? Formal probate requires that you file a formal petition with the Court, as well as a summons. Once filed, you must serve the petition and summons on all the heirs of the decedent, as well as all the will beneficiaries, if any. The summons provides a thirty day period for any interested party to file an Answer to the petition. A hearing must also be requested from the Court, and notice of the hearing served on all interested parties as well, providing at least twenty days notice of the hearing.
After the hearing is held, the Probate Court will make its decision as to who will serve as Personal Representative. It is obviously preferable to have all the interested family members in agreement so that informal probate can be undertaken. But in some cases there is no agreement, and the more complex formal probate procedure is available.