How to Open a Probate Case: Step-by-Step

Opening a probate case is the formal legal step that gives the executor authority to manage and distribute the estate. While the process varies by state, the fundamental steps are consistent. This guide walks through exactly what you need to do to open probate.

Probate procedures vary by state and county. Confirm specifics with your local probate court or an estate attorney.

Before You File: Gather What You Need

The probate court will require certain documents to open an estate:

• The original signed will — if one exists. Courts require the original, not a photocopy. If you have only a copy, contact an estate attorney immediately about your options.
• Certified copies of the death certificate — typically 2–4 certified copies for the probate filing, with more needed for subsequent tasks. Order at least 10–12 total. See our article on how to get a death certificate.
• Your identification — government-issued photo ID
• Basic estate information — the deceased's full legal name, address, date of death, and a preliminary list of their assets (this doesn't have to be exhaustive at this stage)

Step 1: Determine the Correct Court

Probate is handled at the county level in most states. File in the probate court (or surrogate's court, or circuit court, depending on the state's terminology) of the county where the deceased had their permanent residence at the time of death.

If the deceased owned real estate in multiple states, you may need to open an "ancillary probate" in each state where real estate is located, in addition to the primary probate in the state of residence.

Step 2: File the Petition

The executor files a "Petition for Probate" (or "Application for Probate" or similar, depending on state terminology) with the probate court. This document:

• Identifies the deceased and their date of death
• States that the person named (you) is requesting to be appointed as executor
• Identifies the will (if one exists) and requests it be admitted to probate
• Provides a preliminary description of the estate

Most probate courts provide forms for this petition — check the court's website or ask at the filing window. In complex estates or contested situations, have an attorney prepare the petition.

Step 3: Pay the Filing Fee

Courts charge a filing fee to open a probate case, typically based on the estimated estate value. These fees vary widely — commonly $100–$500 for smaller estates, scaling up for larger ones. Confirm the fee schedule on the court's website or by calling the clerk's office.

Step 4: The Court Hearing

In most states, the court schedules a hearing (often just a brief calendar appearance) to formally admit the will to probate and appoint the executor. For uncontested cases with a valid will, this is typically straightforward. In some states, informal or unsupervised probate can be opened without a full hearing.

If the will is being contested — or if there are disputes about the executor appointment — the hearing becomes more significant and you should have an attorney.

Step 5: Receive Letters Testamentary

After the hearing, the court issues Letters Testamentary (or Letters of Administration if there's no will) — the official document confirming your authority as executor. This is the key document you'll use to interact with every bank, financial institution, government agency, and business involved in the estate.

Order multiple certified copies from the court (typically $5–$15 each) — you'll need one for every institution you contact, and they usually won't return them.

Step 6: Notify Beneficiaries and Creditors

After appointment, you're required to:

• Formally notify all beneficiaries named in the will and all legal heirs (even those not named) that probate has been opened
• Publish notice to creditors in a local newspaper (required in most states) — this starts the creditor claim period

Your state's rules on notice are specific — confirm them with an attorney or the court clerk to ensure you're complying correctly.

Do You Need an Attorney?

For straightforward estates — one state, no real estate or limited real estate, no disputes, clear will, cooperative heirs — some executors handle probate without an attorney. This is more feasible in states with user-friendly probate courts and good online resources.

An estate attorney is strongly recommended when:

• The estate is complex (multiple states, business interests, large assets)
• There's any dispute among heirs or creditors
• There's no will (intestate administration)
• Federal estate tax may be owed
• You're not confident in the legal requirements

For the complete probate guide, see our complete probate guide. For the executor's full responsibilities, see our article on the executor's duties and responsibilities.