Probate usually occurs in the local court where the deceased permanently resided at the time of death. If the deceased did not have a Will, each state will have its own pattern for distributing the deceased’s real property. Generally it is necessary to go through probate or, in the case of smaller estates, a less formal procedure that is still under the general supervision of the probate court, before the deceased’s property can be legally distributed. If a person dies with a Will (which is known as dying “testate”), a court needs an opportunity to allow others to object to the Will. A number of objections, might invalidate a Will, for example, an allegation that there is a later Will or that the Will was made at a time the deceased was mentally incompetent. Additional challenges to a Will can include forgery, improper execution (signature), or a claim that the decedent was subject to undue influence. Dying without a Will is known as dying intestate; however, such estates remain subject to the law and rules of the probate code of the decedent’s domiciled jurisdiction.
The Personal Representative typically must file a probate petition and notify all those who would have legally been entitled to receive property from the deceased if the deceased died without a Will, plus all those named in the Will, and give anyone who chooses a chance to file a formal objection to the Will.
A hearing on the probate petition is typically scheduled several weeks to months after the matter is filed. If no objections are filed the court generally approves the petition and formally appoints the Personal Representative. While it is not required that there be representation by an attorney in probate court, probate is a rather formalistic procedure. The death of a family member is typically a stressful time even when the death is expected, such as with a person of quite advanced age or with someone who is terminally ill. Employing an attorney may be the less expensive alternative in the long run.