FORMAL PROBATE VS. INFORMAL PROBATE

By Deloughery Law Office, PLC. of Deloughery Law, PLC 


What is formal probate (vs. informal probate)?
There are two distinctions in terms of how probate cases are handled. One has to do with whether a Petition is handled formally or informally. The other has to do with how much court involvement is needed during the course of a probate case.

Formal probate vs. Informal probate. Certain petitions can be granted informally by the Probate Registrar. For example, if he person dies with a validly executed will, and that will is submitted with all the correct documents, a personal representative or executor can be appointed on behalf of that presents a state without the need for a hearing. However, if the petition and accompanying documents do not fit within what the probate registrar is authorized to handle, then it must go before a probate judge or commissioner for ruling.

The probate case maybe started informally, but then may require a commissioner to rule on a petition. For example, even though a personal representative might have been appointed by the probate registrar informally, if the PR wants to have the court approved his or her legal fees and/or fiduciary fees, that would be filed as a petition requiring a hearing (i.e., formally).

Supervised vs. Unsupervised. Whether a petition in a probate action has been dealt with formally or informally has little to do with whether or not the case is supervised. Supervised administration means that the court must make decisions or approve actions before they are done. This usually happens when there is a significant about of money involved, and the various parties do not trust each other. If there is a dispute about what to do with assets, how to sell them, or how to distribute the sales proceeds, then the court would make all of these decisions on a step-by-step basis. One situation we have seen recently is when a trust owns commercial real estate and there is a dispute about who should be in control of the rental payments.  
A diagram might help show the different possibilities:
Formal-Unsupervised
Formal-Supervised
Informal-Unsupervised
Informal-Supervised
Notice that you can have any combination of formal/informal and supervised/unsupervised. For example, someone might be appointed Personal Representative informally, but then the family disagrees with how the estate is being handled so the court has to step in and make decisions (such as how assets are sold). On the flipside, the initial fight might be over whether a Will is valid or who should be the Personal Representative.  But once those initial issues are resolved the rest of the case goes along smoothly with little or no court involvement (supervision).

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