How to Apply for Probate

One of the early steps in settling most estates is to apply for "probate" (i.e., ask the court for permission to legally represent and administer the estate, ultimately distributing its contents to the rightful recipients).
For non-lawyers, this step is commonly the most daunting of the entire settlement process: for one thing, it occurs at the beginning, when you are just figuring things out, and for another, instructions and rules can be scattered all over the place.
Don't worry: we'll make everything understandable, and give you the estate-specific guidance you need.
Types of Probate
Almost every state offers multiple types of probate, ranging from simplified processes for small estates, to formal, closely supervised probate for complex or problematic estates, to standard probate for typical estates (with a number of states offering even further variations).
- Small: In most states, the small estate process actually bypasses court entirely, and is thus not technically "probate" at all (see small estate process for rules and instructions).
- Formal: If you need a formal, closely supervised variant of probate, it likely means that there is conflict expected, and thus you should almost certainly retain a lawyer, who can handle preparing your application.
- Standard: In most states, the standard form of probate (often known as "informal" or "independent") is most common, and is the focus of the application instructions below.
Application Types
While the term "probate" is commonly used to refer to the court-supervised process of estate settlement (whether or not there is a will), technically speaking, "probate" refers to the submission of a will to the court for review, after which an estate goes through "administration". If there is no will, the estate just goes straight to "administration".
Consequently, in your initial application to the court, most states require you to explicitly specify one of the following application types:
- Administration (if the decedent died without a will)
- Administration with Will Annexed (if there is a will, but it does not name you as executor)
- Probate (if there is a will and it names you as executor... in this case, the term "probate" is shorthand for probating the will and then administering/settling the estate)
Some states have separate forms for each of these types of applications, while others use simple checkboxes within a common application form (and some don't provide forms at all, leaving it up to you).
Application Process
There are several steps you must take to obtain the court's permission to represent and manage
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Probate Application: Start by filing a petition with the court:
- In your petition, declare that you are filing for probate if there is a will, for administration if there is no will, or for administration with will annexed if there is a will but it does not name you as executor (or there are other living individuals who are named in the will as executors with higher priority). See Probate Forms, and note that some states provide forms with separate checkboxes for each situation, while others require completely separate forms.
- If there is no will, or you are not named in the will as the first choice for executor, it can be helpful (or even required) to include a notarized Waiver and Nomination form from each person with equal or higher priority than yours, stating that he or she waives any rights they may have to serving as executor, and nominates you to serve instead.
- Save $$: If there is no will, or the will does not address the requirement for a probate bond, in many states you can avoid the cost of a probate bond by attaching a Bond Waiver from each heir (see Probate Bonds).
- Attach the will (if there is one), an official copy of the death certificate, and anything else required by the application.
- Notice of Probate: Before the first probate hearing, many states will require you to notify all heirs named in the will, and any heirs who would inherit by state law if there were no will (even if there is a will).
- Probate Hearing: The court will hold a hearing to officially consider and approve your application. Often this hearing is just a formality, and you may not need to attend at all.
- Probate Bond: If required by the court, you must obtain a probate bond to protect the estate from any losses you may cause (up to a certain dollar amount). Requirements for such a bond can depend on jurisdiction, whether there is a will, size of estate, whether you reside in the same state, and other factors. See Probate Bonds for advice on how to potentially avoid the need fo such a bond.
- Objections: Note that interested parties have the right to legally challenge your application (before your official appointment, or even afterwards).
- Letters: Once the court approves your application, you will receive your "Letters", which are certified documents you can use to prove your authority to third parties. If you applied for "probate", you will officially be known as the "executor" of the estate. If instead you applied for "administration", you will be known as the "administrator". Many states also use the term "personal representative" to cover both cases, sometimes deprecating the uses of the more precise terms.
Court Location
It can sometimes be difficult to determine which court to use for a given estate. The particular type of court that oversees the probate process varies by state: it may be a dedicated probate court, a circuit court, a superior court, a general county court, or something else. See Tasks: Start probate to find the appropriate court for your estate.
Note that real property must be probated in the state in which it is physically located, so you may need to go through probate in multiple states.
Next Steps
Once you have been officially appointed and granted your Letters, you can begin the bulk of the estate administration and settlement process, keeping in mind that you now have a fiduciary duty to act in the best interests of the estate.
See our Complete Guide to Estate Settlement in every state for an overview of estate settlement in general, Probate for the court-supervised aspects of estate settlement in particular, and Timeline for an overview of tasks by time period.
If you are using EstateExec, it will automatically generate a list of detailed tasks for you to accomplish, based upon the particulars of your estate.
Additional Information
See also Becoming Estate Executor (i.e., Personal Representative).
In case you're interested, instructions for probate application in each state can be found here: