Probate Petition Guide

Use probate when the decedent left a will. Use administration when the decedent died without a will. Both proceedings are handled by Surrogate's Court, but the forms and legal questions are different.

Probate asks the court to recognize a will and appoint the executor. Administration asks the court to appoint an administrator because there is no will controlling who serves.

This guide is general information, not legal advice. If a will may be contested, if there are handwritten changes, if the original will is missing, or if the family tree is disputed, get attorney review before filing.

If the original will has staples, do not remove them. Courts may question whether a will was altered if staples were removed or pages appear disturbed. Make copies carefully and keep the original in the same physical condition in which it was found.

People often assume only the named beneficiaries matter. In probate, distributees matter too. A distributee is a person who would inherit if there were no will. Distributees usually receive notice because they have a right to object to the will being admitted to probate.

This is why probate packets ask for family information even when the will leaves everything to one person, a charity, or a non-family beneficiary.

If distributees sign waivers and consents, the process can be simpler. If they do not, the court may issue a citation requiring service. A citation gives the person notice of the probate proceeding and a court date or return date.

If someone objects, the matter can become contested. Common objection issues include capacity, undue influence, fraud, improper execution, later wills, or questions about the original document.

If the decedent had a will but only $50,000 or less in personal property, a small estate proceeding may be available. The existence of a will does not automatically require full probate. However, small estate treatment does not administer real property.