Formal Probate is the Court reviewed legal process for settling an estate. Formal probate takes place before a judge (or referee of the probate court). This contrasts with informal probate, which takes place before the County Registrar.
There are two kinds of formal probate: supervised and unsupervised. In a supervised formal probate, the Court supervises the actions of the personal representative. The personal representative will need to file a final account of the estate with the court. No distributions to creditors or heirs may be made without Court approval either. Unsupervised formal probate is just that – unsupervised by the Court.
Which is Better, Supervised or Unsupervised?
There are benefits to both supervised and unsupervised, depending on the circumstances. For example, on one hand, if there are disputes about the estate, then supervised may be appropriate. Having the Court give its blessing throughout the probate process can quell the cries of an unhappy heir. On the other hand, supervised formal probate requires multiple court appearances. This generally requires an attorney, who must be paid for the appearances. Court costs and attorney fees will obviously be higher in supervised. But it may be worth it, depending on the circumstances.
When does a Probate become Formal, Rather than Informal?
A probate can become formal in two ways. First, it could have been initiated formally, by filing a Petition for Formal Probate of Will and Appointment of Personal Representative. Second, the County Registrar may have rejected an application for informal probate, requiring it to be filed probate. There are numerous reasons that a County Registrar may require a case to be formal rather than informal. Some of the more common reasons are:
- Real property is in the estate and not going to be sold as part of the probate.
- The probate required complicated administration.
- Some of the heirs or devisees are minors.
- There are problems with the will, such as its terms being ambiguous
- An individual is being disinherited who might otherwise expect to be a devisee
- The heirs or devisees are arguing or in conflict.
It is important to note that the County Registrar can make a probate formal for any reason. They also aren't required to explain themselves, and there is no appeal.
Formal probate, whether supervised or unsupervised, is a complicated process. It is just that – formal – and takes place in Court, in front of a judge. Some people are able to get through the informal probate process on their own. But when it comes to formal probate, it is generally wise to be represented by an attorney.
If you have questions about formal probate or need help working through the process, please feel free to contact Signature Law for a free consultation.