The Probate Process

This describes the probate process in Montgomery County when seeking an independent administration of an attested will, when the process is uncontested. This is the most common form of probate. All of the procedures and documents required to fulfill the following procedures are usually handled by my office as part of the set fee.

 

• 1
   After an initial meeting with the client when all of the details of the decedent’s death, family history and assets of the estate are discussed, an application is filed for probate of the Will (and any Codicils) and for issuance of Letters Testamentary (resulting from appointment of the person named in the Will to be the Executor, sometimes referred to as the personal representative).
• 2
   The original version of the Will and any codicils are filed with the Application.
• 3
   The Constable's office posts notice of the filing in a public place.
• 4
    A hearing is scheduled in court approximately 3 weeks from the date of filing.
• 5
    If the Will is self-proven, it is usually only the client and the attorney that makes an appearance at the hearing, at which time, the client gives brief testimony concerning the family history, the death of the decedent, and other brief but relevant testimony, so that the Judge will admit the will to probate and appoint the client as personal representative of the estate. If the will is not self-proven, then usually at least 2 other non-interested persons also appear at the hearing to give evidence of their knowledge and familiarity with the signature of the decedent.
• 6
    The Will is admitted to probate at the hearing. The hearing usually last for 5-10 minutes. The entire time in court usually is not more than 30-45 minutes.
• 7
    The Court orders that Letters Testamentary be issued to the personal representative. The personal representative signs an oath, and also a written form of the evidence presented to the court.
• 8
    The County Clerk issues Letters Testamentary, and, within a few days, these can either be picked up at the office of the County Clerk or they are mailed to the personal representative or the attorney.
• 9
    Within 30 days of the date of appointment, a Notice to Creditors must be published in a local newspaper, notifying the public of the appointment and the requirement of creditors to submit claims within a certain period of time. This Notice and publication is usually handled my office as part of the set fee.
• 10
    Within 60 days from the date of appointment, beneficiaries named in the will must receive a formal notice of the probate, and receive a copy of the Will. In lieu of this Notice, a beneficiary may sign a Waiver, which must be filed with the court within 90 days from the date of appointment. This process is usually handled by my office as part of the set fee.
• 11
    Within 90 days from the date of appointment, a Certificate of Compliance (stating compliance with the Notice or Waiver process) must be filed with the court. The Certificate can be signed by the personal representative, or by the attorney. This process is usually handled by my office as part of the set fee.
• 12
    Within 90 days from the date of appointment, an Inventory of the assets of the estate must be filed with the court, or if all debts of the estate have been paid, an Affidavit in Lieu of Inventory can be filed with the court. The Affidavit simply provides a process whereby a detailed inventory does not have to be filed in the public record, however, an inventory must be provided to all beneficiaries of the estate. The Inventory or Affidavit is signed by the personal representative before a notary. My office usually handles this process as part of the set fee.

The foregoing procedures usually fulfill all of the requirements that involve the court. The completion of administration is fulfilled when the personal representative has marshaled all of the assets of the estate, has paid all of the debts of the estate, and distributes the assets of the estate to the appropriate heirs who are entitled to receive such assets. These procedures are usually fulfilled within 6 months from the date of appointment.

 

On occasion, the administration of an estate can be more complicated, be far more costly, and take more time to fully wind up the affairs of the decedent. This may occur if an estate has assets in the millions of dollars, or if any of the processes of probate are contested by a third-party. The full scope of the duties of a personal representative are described in the link “Duties of an Executor”. All of the duties described will not necessarily take place in every probate process. I will help guide you through this process.