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Formal Probate

What is formal probate?

Formal probate is a court process that allows the Personal Representative to transfer the property of a person who died to the persons who are supposed to receive it with more court involvement. A formal probate is usually used for complicated issues such as challenges to the Will, disputes between beneficiaries or heirs, or supervision of the Personal Representative. A formal probate can be long and expensive and can turn into litigation. The parties to the probate case may request discovery, mediation and a jury trial.

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Who can file a petition for formal probate?

Any interested person can ask the court to open a formal probate or change an informal probate to a formal probate. This could include the Personal Representative, a beneficiary, an heir, a spouse or a creditor.

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When do I have to use the formal probate process?

If any of the following apply, you must file a petition for formal probate and cannot use the informal probate process:

These are the most common reasons. You may also want to open a formal probate for other reasons such as doubts about the person's death or finding a new Will. If you think that you need to open a formal probate, it is a good idea to talk to a probate lawyer.

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How do I get started?

This section covers what to do when you want to (1) open a formal probate and (2) appoint a Personal Representative. If you want to do only one of these things or if one of these things has already been done, it is a good idea to talk to a probate lawyer.

You will need to gather the following documents and file them with the court:

You will need to prepare the following documents and file them with the court:

If the court sets a hearing on your petition you must also give proper notice of the hearing before the court will open the probate.

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How do I prepare a Petition for Formal Probate and Appointment of Personal Representative?

You must file a document called a "Petition" to ask the court to open the probate and appoint you as Personal Representative. Below is a simplified list of things you must say in the Petition. You should read Alaska Statute 13.16.145 and Alaska Statute 13.16.080 to make sure that your Petition is complete.

If the person who died made a Will, the document is usually called:

Petition for Adjudication of Testacy, Formal Probate of Will and Appointment of Personal Representative

and must include the following:

If the person who died did not make a Will, the document is usually called:

Petition for Adjudication of Intestacy, Determination of Heirs and Appointment of Personal Representative in a Formal Proceeding

and must include the following:

The following statements if applicable:

All petitions tell the court the following:

  1. Why you are an interested person in the estate of the person who died.
  2. Information about the person who died, including:
  3. If the person is not an Alaska resident, why probate should be opened in Alaska.
  4. The name and address of any Personal Representative who is already appointed.
  5. Whether you have received a Demand for Notice or know of any Demand for Notice or other probate proceeding.
  6. Your name and address.
  7. Why you have the right to be the Personal Representative. If you are already appointed as Personal Representative in informal probate, you must ask the court to confirm your appointment.
  8. The name of anyone else who has the same right or a higher right to be the Personal Representative as you do.

* Important: You must sign a "verification" under oath that all of these statements are true and complete to the best of your knowledge and belief. You can do this before a notary. If you have any questions, you should talk to a probate lawyer.

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How do I prepare an Order for Formal Probate and Appointment of Personal Representative?

You must file a document called an "Order" which the court will sign when it opens the formal probate and appoints you as Personal Representative. Below is a simplified list of things you must say in the Order. You should read Alaska Statute 13.16.180 to make sure that the Order is complete. If you have any questions, you should talk to a probate lawyer.

The Order should include:

Do not sign the Order. Leave a space for the court to sign the Order when it opens the probate. If you have any questions, you should talk to a probate lawyer.

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How do I prepare the Letters and Statement of Acceptance?

You must file a document called "Letters" which the court will sign when it appoints you as Personal Representative. The Letters prove that you have the right to be the Personal Representative. You must also sign and file a Statement of Acceptance attached to the Letters in which you accept your duties as Personal Representative.

Below is a simplified list of things you must say in the Letters and Statement of Acceptance. You should read Probate Rule 7 to make sure that your document is complete. If you have any questions, you should talk to a probate lawyer.

Title the document as follows:

If the person who died made a Will, the document is usually called:

Letters Testamentary and Statement of Acceptance of the Duties of Personal Representative

If the person who died did not make a Will, the document is usually called:

Letters of Administration and Statement of Acceptance of the Duties of Personal Representative

You must say the following in the Letters:

You must say the following in the Statement of Acceptance:

Sign the Statement of Acceptance before a notary. Do not sign the Letters. Leave a space for the court to sign the Letters when it appoints you as Personal Representative.

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How do I file bond?

Read more about filing a bond or waiving bond.

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What should I do after I file the petition?

If you asked for a hearing in your Petition, the court will schedule one and mail the time and date to you. You must give notice of the hearing to the appropriate people and file proof with the court before the hearing date.

If you asked for an order without a hearing in your Petition and the court agrees, it will mail you the signed Order and Letters. The court is more likely to open a formal probate without a hearing if all of the heirs and devisees of the person who died agree that a hearing isn't needed.

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What happens at the hearing?

You can give the court documents that support your Petition. It is a good idea to file these with the court before the hearing. You can also testify or have others testify about your Petition. The court will also listen to other interested persons who might have something to say about your Petition. Usually, the court will make an order right away but sometimes it will take time to make a decision.

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Who do I have to notify of the initial hearing?

You must give notice of the hearing for formal probate to the following:

You must also publish notice to the following:

In certain cases (for example if there are doubts about whether the person has died), you may need to do more. It is a good idea to talk to a probate lawyer before filing a formal probate.

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How far in advance do I have to send notice of a court hearing?

You must mail the notice at least 14 days before a hearing. If you are publishing a notice of a court hearing, the last publication date must be at least 10 days before a hearing. You must file proof of giving notice with the court on or before the hearing date.

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What do I do if the person died more than three years ago?

If you have not opened any probate during the three years, you have the following options:

You may be able to open a probate after three years for a few other reasons. However, if it has been more than three years since the person died, it is a good idea to talk to a probate lawyer.

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Once the formal probate starts, what happens next?

Once the court appoints a personal representative, that person has many responsibilities. For information on how to use the Letters and your duties as Personal Representative , see Personal Representative Duties and Responsibilities.

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Rev. 21 July 2014
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