In this issue, we will discuss the petition to probate will in common form.
The petition to probate will in common form is used in order to quickly appoint an executor to represent an estate without having to provide notification to anybody.
The petitioner chooses this petition to file with the probate court in order to ask them to declare that the will attached to the probate petition is the deceased actual last will and testament. The burden of proof regarding the authenticity of the will is held by the petitioner. Usually presenting a self-proving affidavit, which is often attached to the will, will suffice. Or the testimony of one of the witnesses to the will is considered proof of authenticity as well.
The petition to probate will in common form is unique in that there is no requirement that notice be given to anyone. This is unlike the petition to probate will in solemn form. The petition to probate will in common form requires neither the petitioner nor the Probate Court to give personal notice to any of the beneficiaries or heirs. As a result, this petition is considered useful in emergency situations, situations where it may be necessary to obtain control of an estate immediately.
What might be considered the downside to this petition is that it takes four years before it is considered final and binding. What this means is that an heir or beneficiary has four years to object to the petition or the will. If the objection is successful, then the property that was distributed to the original beneficiaries may have to be returned. This probate petition is not thought of as the best choice for permanent administering of the estate.
In order to file this petition, the petitioner is responsible for presenting both the proposed last will and testament of the deceased and the petition to the probate court. If the petitioner is unable to find a will, then this petition should not be used.
Upon filing of this probate petition, the petitioner must disclose the names and addresses of all heirs to the probate court. However, the probate court is not required to send legal notice to anyone. Once the petitioner is able to prove the authenticity of the will to the probate court, then the probate court will issue an order confirming that the will is in fact the last will and testament of the deceased. The probate court’s order will then qualify the petitioner as the executor. After the petitioner has qualified, letters testamentary will be issued by the probate court granting the executor power to administer and settle the estate of the deceased.
In the next issue, we will cover the petition for letters of administration with the will annexed. That is the third, and the last, petition that is allowed to be filed if your loved one had a valid will.
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