Probate does not begin until paperwork is filed and accepted by the appropriate court. The paperwork is typically filed by the person named as personal representative. If there is no will, then the paperwork is typically filed by the person seeking appointment as personal representative*. The type of paperwork filed, depends upon the value of the assets being probated. If the value is small, then a Small Estate Affidavit may be used. If the value is average or above, then a formal Petition is filed. (See my upcoming blogs for more information on the differences). A Small Estate Affidavit is intended to be prepared without an attorney, though I often find that legal counsel is needed. A formal probate petition is normally prepared by an attorney.
This paperwork is then filed in the county where the deceased person lived, owned property, or had assets at the time of death. A formal Petition requests that the court ‘open probate’ or start the probate process and appoint a personal representative. Once the personal representative is appointed or the Affidavit is accepted, authority is established for the Personal Representative or Affiant to begin the process of dealing with the deceased’s assets and debts.
*(Note: that the term “personal representative” and “executor” are used interchangeably).