Also known as:petitions for probate · probate petition
Written by attorneys — see sources below.
A written application by which a party requests that a court admit a will to probate. The filing initiates a formal testacy proceeding in which the court determines whether the instrument satisfies execution requirements and should be given effect.
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How its tested
Common Examples
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Burden Allocation in Contested Proceeding
Parker Phillips, named executor under a 2022 will, filed a petition for probate in State A after the testator's death. Priya Prasad, the testator's child, objected and sought intestacy, claiming undue influence by Phillips. In the formal testacy proceeding, Phillips presented the signed instrument and witness testimony to meet the initial burden on due execution, while Prasad bore the burden of proving undue influence through evidence of the testator's weakened condition and Phillips's involvement in drafting.
Out-of-State Will Offered Locally
Philip Powell, a beneficiary under an Illinois will, filed a petition for probate in Iowa after the Illinois court denied probate on revocation grounds. The Iowa heirs objected, citing the prior denial. The court considered whether the instrument could be offered anew in Iowa despite the Illinois ruling on the same document.
In re Estate of Barrie240 Iowa 431, 35 N.W.2d 658 (1949)
Mary E. Barrie was domiciled in Whiteside County, Illinois, at the time of her death. She owned real and personal property in Illinois as well as real property located in Tama County, Iowa.
After her death an instrument purporting to be her last will and testament was discovered. The instrument had been signed by the decedent and witnessed by two witnesses. When found the word "void" had been written across its face in at least five places, including the attestation clause, and the same word together with the name "M. E. Barrie" and "Mary E. Barrie" also appeared on the cover and on the envelope containing the instrument.
The instrument was offered for probate in Whiteside County, Illinois. It was first admitted to probate but was later denied probate after the Illinois Supreme Court ruled that the instrument had been revoked by cancellation and that the decedent had died intestate.
Thereafter one of the beneficiaries named in the instrument offered it for probate in Tama County, Iowa. The decedent’s heirs at law filed objections to the petition for probate. The objections were based upon the Illinois Supreme Court judgment. The proponent moved to strike the objections on the ground that they did not constitute a valid basis for denying probate. The trial court overruled the motion to strike and this appeal was taken from that order.
Who bears the burden of proving due execution when a petition for probate is contested?
The proponent of the will must establish prima facie proof of due execution in all cases. If the proponent is also the petitioner, that party must additionally show prima facie proof of death and venue. Contestants then carry the burden on issues such as lack of capacity or undue influence.
Supporting sources
What happens if multiple instruments are offered for probate before a final order?
More than one instrument may be probated if neither expressly revokes the other. The order indicates which provisions control the nomination of an executor. After a final order, no further petition for probate of another instrument is permitted except through a petition to vacate or modify subject to time limits.
Supporting sources
Does filing a petition for probate require appointment of a special administrator?
If a special administrator is needed pending probate, the person named executor in the will is appointed if available and qualified.
Supporting sources
283 Mass. 189, 186 N.E. 86
…testatrix at the time of her death was her maternal aunt, Frances Hawkes Greene, who is still living and who was named in the petition for probate of her will. The will was duly proved and allowed on October 8, 1931, and letters testamentary issued accordingly. The testatrix was a single woman about sixty-four years of age, and had…