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How do I open a probate estate? Miniseries part 3/3

How do I open a probate estate? Miniseries part 3/3

Daniel Marchese, esqIn the last part of our miniseries on opening a probate estate, we will discuss the basics of opening an estate using a “formal” procedure and will include a brief discussion of what supervised estates are.

Formal Procedure for Opening an Estate

When used in probate court jargon, “Formal” is a bit of a misnomer because its function in an estate is a procedural one that is either used or not used when attempting to open an estate. As we have mentioned in previous articles, an “Informal” appointment is one in which the Probate Register has the statutory authority to open an Estate and assign a file number and a judge. In a “Formal” estate, the ‘Petitioner’ files paperwork with the court clerk and the clerk will set a hearing before the judge on matters to be determined such as who the personal representative will be, who the heirs will be, inter alia. It follows that only the judge may issue an order on the matters to be decided. This is in contrast to an Informal appointment where the probate register may appoint the Personal Representative and determine heirs. The state approved court form for a Petition is pc559. More guidance can be found at the following link: https://www.oakgov.com/courts/probate/Pages/form_application/deceased-formal-supervised-estate-forms.aspx

When filing an application or petition for appointment of personal representative and determination of heirs, an applicant or petitioner may seek to open a “Supervised” or “Unsupervised” estate. As noted in the aforementioned link, ‘Supervised’ administration requires the Probate Court to review and approve the activities of the estate. “‘Unsupervised’ administration does not require the Probate Court’s review or approval. There are limited filing requirements. An interested person or the Personal Representative may request supervision at any point on a particular issue, or for the duration of the administration.” Id.

Supervised administration may be promulgated by will if the testator determines that no one can be trusted and that the judge needs to appoint a public administrator. It also may be the case that there is contention between heirs or that there is some other dispute. In short, if the judge orders that the estate be supervised, all affairs of the estate must be approved by the  judge in said matters.

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