How to File a Petition to Probate a Will

How to file a petition to probate a will is one of the most important legal steps after someone dies with a valid will. The process formally asks the probate court to recognize the will and appoint the executor. Until the court approves the petition, the executor has no legal authority to act.

Many families believe the will transfers property automatically. However, that assumption is incorrect. A will only becomes enforceable after the court accepts it. The filing of a Petition for Probate begins that process.

This guide explains exactly how to file a petition to probate a will, what documents are required, common mistakes to avoid, and what happens after court approval.

Why Filing a Petition to Probate a Will Is Required

A will does not take effect at death. Instead, the executor must file a petition to probate a will in the county where the decedent lived.

This filing is required because:

The court must validate the will.
The executor must be formally appointed.
Legal authority must be issued.
Creditors must receive notice.
Beneficiaries must be recognized.
Assets must transfer legally.

Without filing the Petition for Probate, banks and financial institutions will freeze accounts. Title companies will refuse to transfer real estate. Brokerage firms will not release investments.

Therefore, filing the petition protects the estate and prevents delays.

What Is a Petition for Probate?

A Petition for Probate is a formal legal document submitted to the probate court. It requests three primary actions:

Admission of the will into probate.
Appointment of the named executor.
Issuance of Letters Testamentary.

The petition includes:

The decedent’s legal name.
Date of death.
County of residence.
Statement that the will appears valid.
Names and addresses of heirs and beneficiaries.
Confirmation that the executor is willing to serve.

Once accepted, the estate is officially opened.

Step 1: Locate the Original Will

Before you can file a petition to probate a will, you must locate the original signed document.

Most courts require the original will. A photocopy is rarely accepted unless strict legal standards are met.

Search carefully in:

Safes.
Filing cabinets.
Safe deposit boxes.
Estate planning binders.
Attorney offices.

If the original cannot be found, the court may presume it was revoked. Therefore, locating the original document is critical.

If you are unsure where the will was stored, you may check The U.S. Will Registry. It was created to help family members locate where a loved one’s will was stored or identify the attorney who drafted it so probate can proceed according to the decedent’s wishes.

Step 2: Obtain Certified Death Certificates

You cannot file a petition to probate a will without a certified death certificate.

Order multiple copies from:

The funeral home.
The county health department.
The state vital records office.

Most financial institutions require original certified copies. Therefore, request more than one.

Step 3: Determine the Correct Probate Court

File the petition in the probate court located in the county where the decedent resided at death.

Filing in the wrong county causes delay and rejection.

If real estate exists in another state, you may later need ancillary probate in that state. However, the primary Petition for Probate must be filed in the home county.

You can confirm jurisdiction through your county court website or your state judiciary portal.

Step 4: Prepare the Required Probate Documents

Each state has different procedural requirements. However, most Petition for Probate filings include:

Original will.
Certified death certificate.
Petition form.
List of heirs and beneficiaries.
Executor oath or acceptance.
Proposed order for the judge.

If the will includes a self-proving affidavit, the court may not require witness testimony. This significantly simplifies admission.

Carefully review your local probate court website. For example, you can review general probate information at the American Bar Association website:
https://www.americanbar.org/groups/real_property_trust_estate/

Always confirm local procedural rules.

Step 5: File the Petition With the Probate Clerk

Submit the completed Petition for Probate to the clerk of court.

You must:

Pay the required filing fee.
Provide the required number of copies.
Obtain a case number.

Some states schedule a hearing automatically. Others review paperwork administratively.

Once filed, the estate is officially pending before the court.

Step 6: Provide Notice to Heirs and Creditors

Probate law requires formal notice to interested parties.

You may need to:

Mail statutory notice to heirs.
Publish notice in a legal newspaper.
File proof of service with the court.

Failure to provide proper notice can invalidate proceedings. Therefore, strict compliance is essential.

Step 7: Attend the Probate Hearing

In some jurisdictions, the court holds a hearing.

At the hearing, the judge will:

Confirm the will appears valid.
Confirm notice requirements were satisfied.
Confirm the executor is qualified.

If no objections are filed, the court will grant the Petition for Probate.

Step 8: Receive Letters Testamentary

After approval, the court issues Letters Testamentary.

These documents provide legal authority to:

Access bank accounts.
Manage investments.
Sell or transfer real estate.
Pay debts.
Distribute assets.

Without Letters Testamentary, financial institutions will refuse cooperation.

Common Mistakes When Filing a Petition to Probate a Will

Even small errors can delay probate. Avoid these common mistakes:

Filing in the wrong county.
Submitting a copy instead of the original will.
Failing to list all heirs.
Ignoring creditor notice deadlines.
Omitting required forms.
Missing filing deadlines.

Each mistake can increase legal costs and prolong administration.

What Happens After the Petition Is Approved?

After the Petition for Probate is approved, the executor must:

Inventory estate assets.
Open an estate bank account.
Notify creditors.
Pay valid debts.
File required tax returns.
Distribute remaining assets.

The court maintains oversight until final distribution.

When Is Filing a Petition to Probate a Will Not Required?

Probate may not be required if:

Assets are jointly owned with survivorship rights.
Accounts have beneficiary designations.
The estate qualifies for small estate procedures.
Assets are held in a trust.

However, when assets are titled solely in the decedent’s name, filing a petition to probate a will is typically required.

Final Thoughts

Understanding how to file a petition to probate a will protects the estate and ensures the decedent’s wishes are honored.

The process requires careful documentation, strict compliance with notice requirements, and proper court filing.

When completed correctly, the Petition for Probate grants legal authority, prevents asset freeze, and allows efficient estate administration.

Taking prompt action reduces risk, protects beneficiaries, and ensures lawful distribution of assets.

Why must I file a petition to probate a will?

You must file a petition to probate a will because the document has no legal effect until the probate court formally admits it. The filing validates the will, appoints the executor, and authorizes asset management and transfer. Without court approval, banks and financial institutions will freeze accounts, and beneficiaries cannot legally receive property.

How long do I have to file a petition to probate a will?

The deadline to file a petition to probate a will varies by state, but most jurisdictions require filing within a reasonable time after death. Waiting too long can create legal complications, expose the estate to creditor action, and increase the risk of disputes. Prompt filing protects assets and preserves the decedent’s intended plan.

What happens if no one files a petition to probate a will?

If no one files a petition to probate a will, the executor has no legal authority to act on behalf of the estate. Assets remain inaccessible, debts may go unpaid, and conflicts among heirs may increase. In some cases, the estate could proceed under intestate succession laws despite the existence of a will.

Can I file a petition to probate a will without an attorney?

In many states, you may file a petition to probate a will without hiring an attorney, particularly if the estate is simple and uncontested. However, estates involving disputes, tax concerns, business interests, or property in multiple states often require legal guidance to avoid procedural errors and costly delays.