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Procedural Probate Steps

What steps do I have to take in a probate and how long does the process last?

The probate process is different for almost every estate. Most probates usually take between six months to one year to finish but some can last several years, depending on the type of probate and whether there are any difficulties.

The chart below gives a simplified outline of the most common type of probate, an informal probate:

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Where do I file the probate case?

You should file the documents to open a probate in the court located in the Alaska judicial district in which the deceased person lived at the time of his or her death.

First, figure out which Alaska judicial district the deceased person lived at the time of his or her death. This is called “venue.” Refer to the community chart

to identify the appropriate judicial district.

Next, figure out the court location within a judicial district by referring to the Superior Court Locations by Judicial District information.

If the person who died did not live in Alaska, you may file the probate in any Alaska judicial district in which the person owned property or in any judicial district in which an Alaska fiduciary lives or does business if the fiduciary controls property owned by the person who died.

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Where can I get a certified copy of the death certificate?

The funeral home will give you one certified copy of the Death Certificate when you make funeral arrangements for the person who died. It is helpful to file a certified copy with the court when you open the probate. Ask the funeral home for five to ten extra certified copies because you might need to give copies to others, such as banks, life insurance companies or retirement plan administrators. The funeral home charges a fee for certified copies of the Death Certificate. You can get more certified copies from the Alaska Health Analytics & Vital Records but it can sometimes take time to receive them.

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Do I have to file the original Will with the probate court?

Yes, you must give the original Will to the probate court unless the person who died already gave his or her original Will to the probate court for safekeeping. The Will becomes a permanent part of the court file.

It can sometimes be hard to find the original Will made by the person who died. You should start by asking close family members where they think the original might be. You should look in the person’s home, including in a file cabinet, safe, or even in the freezer (which protects a document from fire). You can also ask the person’s lawyer if he or she kept the original. If you think that the original Will might be in a safe deposit box and there is no surviving joint depositor, you will need to ask the probate court for a special order that allows you to access the box. It is a good idea to talk to a probate lawyer if you need access to the person’s safe deposit box to look for the original Will.

If you still can’t find the Will or can only find a copy, you may still be able to probate the Will using the formal probate process. You will have to describe what the Will said or give the court a copy and tell the court what you think happened to the original Will.

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What if I already gave the original Will to another court?

You can file an “authenticated” (sometimes called a “certified”) copy of the Will with the court if either of the following applies:

You already filed the original Will with another court; or
The United States Bureau of Indian Affairs (BIA) requires the original will to probate restricted property.

If either situation applies, ask the other court or the BIA to give you an authenticated copy of the Will to file with the Alaska probate court.

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Can I still use the probate process if the person who died did not leave a Will?

Yes. The steps that must be taken are basically the same with or without a Will.

A Will does not control the probate process but it does control certain things such as who can serve as Personal Representative and who receives the property when the probate is finished. If the person who died made a Will, the Personal Representative named in the Will has the right to serve and the beneficiaries named in the Will usually receive the property. If the person who died did not make a valid Will, the state of Alaska decides who can serve as Personal Representative and what heirs receive the property in what amounts.

If the person who died left a valid will, he or she is said to have died “testate” and the probate process is one of “testacy.” If the person who died did not have a will or died with a will that isn’t valid, he or she is said to have died “intestate” and the probate process is one of “intestacy.”

For more information, see Wills and Death Without a Will – Intestacy.

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Who can be the Personal Representative?

Any suitable person who is 19 years or older may serve as the Personal Representative. An organization, such as a bank or trust company, may also serve as the Personal Representative.

A person may serve as Personal Representative in the following order:

A person nominated in the Will of the person who died.
The spouse of the person who died if the Will makes a gift to him or her.
Any person who receives a gift under the Will.
The spouse of the person who died even if the Will does not make a gift to him
or her or if there is no Will.
Any heir of the person who died.
Any creditor of the person who died if it has been 45 days since the person’s death.

For more information, see Personal Representative Duties and Responsibilities.

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Do I have to file a bond to be appointed Personal Representative?

Yes, although usually either the Will or interested persons will waive bond. You can also ask the court to waive bond. If you are not excused from bond, you must file a bond before you are appointed.

You do not have to file bond if:

The person who died waived bond in his or her Will.
Each person who is to receive property under the Will (devisee) files a Waiver of Bond Requirement, P-334
[Fill-In PDF]

, or if the person didn’t leave a Will,
- Each heir of the person who died files a Waiver of Bond Requirement, P-334
  [Fill-In PDF]
  
  .
The Personal Representative is a qualified organization.

If the bond requirement is waived, file:

Waiver of Bond Requirement, P-334
[Fill-In PDF]

If you are not excused from bond, you must file a bond before you are appointed. You must file a bond equal to one of the following:

The amount set out in the Will of the person who died;
The amount set by the court; or
Your best estimate of:
- The value of the personal property (not including real property) of the person who died; and
- The income that will be generated by all of the property (including real property) of the person
  who died during the next year.

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What do I file if all heirs or devisees agree to waive the bond requirement?

A bond is a cash payment or pledge of property that guarantees the personal representative will fulfill his or her duties. However, the requirement is commonly waived when there is:

A Will and all devisees sign a written Waiver of Bond Requirement, P-334
[Fill-In PDF]

, or
No Will and all heirs sign a written Waiver of Bond Requirement, P-334
[Fill-In PDF]

You should file all the bond waivers with your request to start a probate case.

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How do I file a bond?

You can file a bond in the following ways:

Deposit the full amount with the court, either in cash or property.
Pledge property in an amount at least as high as the required bond.
Ask the court to reduce the amount of bond if the person who died had assets in a bank or financial institution and they are held in a way which protects them from misuse.

In the bond you must:

Describe the property you pledge.
If someone else guarantees your bond, tell the court who will pay if you do not fulfill your duties as Personal Representative. This person is called a surety.
Name the “State of Alaska” as the “obligee.”
Say that the bond is for the benefit of all persons interested in the estate.
Say that the bond is conditioned on the faithful discharge by the Personal Representative of his or her duties.

The court will decide whether the bond, pledge and surety are acceptable.

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How do I get the bond back?

You can ask the court to return the bond after you fulfill all of your duties as Personal Representative. You can also ask the court for a Certificate Discharging Liens Securing Fiduciary Performance which you can use to release the property if necessary.

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Can I ask the Personal Representative to post bond if I am an heir, beneficiary or creditor?

Yes. If you have an interest in the property of the person who died which is worth more than $1,000, you may ask the court in writing to make the Personal Representative post bond. But if the bond has already been waived, is set by the Will or has been set by the court you cannot change this.

Once the Personal Representative receives your demand for bond, he or she cannot do anything as Personal Representative other than protect the estate. If he or she does not post bond within 30 days, you can ask the court to remove him or her as Personal Representative.

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Do I need to notify anyone that I am filing a probate?

Yes. You must give notice to the following persons:

Anyone who has filed a Demand for Notice.
Anyone who has the same right or a higher right to be the Personal Representative as you do.
Anyone who is already the Personal Representative.

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How do I “give notice” to someone?

Notice is a way to let someone know what is happening in the probate. Usually this means that you must send the person a copy of the document that you plan to file with the court. Sometimes an interested person might ask for notice and other times you must send notice whether someone has asked for it or not.

Generally, you must give notice to one of the following:

The person who has the right to receive notice.
The person’s lawyer if the lawyer has appeared in court.
The person’s lawyer if the person asks you to send it to his or her lawyer.
The person’s Guardian, guardian ad litem, Conservator, or other fiduciary if one has been appointed for the person or if the person is a minor.

You may send notice in any of the following ways:

Deliver or have it delivered personally to the person.
Mail a copy by certified, registered or ordinary first-class mail to the address in the person’s Demand for Notice. If the person did not file a Demand for Notice, mail the notice to the person’s office or where the person lives.
Publish the notice once a week for three weeks in a row in a newspaper which is commonly read in the judicial district where the probate is filed. You can only publish notice if you have tried in good faith to find the name and address of the person and cannot find it.

You must file proof with the court that you delivered, mailed or published the notice.

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Can a person waive notice?

Yes. Any person can waive the right to notice by filing a document with the court.

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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 notice, 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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Who can file a Demand for Notice?

Anyone with a financial or property interest in the estate can file a Demand for Notice with the court any time after the person’s death. The right to demand notice ends when you no longer have a legal interest in the estate.

Demand for Notice, P-305

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What do I do if someone files a Demand for Notice?

You must send that person a copy of every document you file with the court which has to do with the Demand. You must give proof to the court that you gave this notice. If the person who filed the Demand for Notice no longer has any interest in the estate or waives his or her right to notice, you can stop sending notices.

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What other practical things should I consider when I file a probate?

It is a good idea to keep a notebook of everything that you do as Personal Representative, with tabs arranged by task. It is important to make a copy of everything that you file with the court or mail to others and put these copies in your notebook. Staying organized will help you make sure that you do everything that you are supposed to, meet all of the deadlines and make things more efficient if you need to talk to a probate lawyer at some point in the probate.

Unless there is a special legal requirement, you can mail all documents by regular first-class mail, postage prepaid. However, it is always a good idea to send mail certified, return receipt requested, so that you have proof that you mailed it and on what date. You may need to file this proof later with the court if there is a dispute about whether or when you mailed something.

You will need to sign all Affidavits and many other court documents before a notary. Notary services are available for free at all state court offices.

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How do you collect property in Alaska if another state handled the probate case?

If another state handled a probate case and there is estate property in Alaska, the personal representative appointed in the other state (called a domiciliary foreign personal representative) can administer property in Alaska by filing:

Domiciliary Foreign Personal Representative’s Statement, P-312
[Fill-In PDF]
Authenticated copies of the appointment papers from the out-of-state court, and
Authenticated copy of any bond given in the out-of-state probate case unless it was waived.

The Alaska court can only appoint a domiciliary foreign personal representative if there is no probate case pending in Alaska. Once appointed, the domiciliary foreign personal representative has all the powers of a local personal representative. It is called Ancillary Administration when the foreign personal representative is acting to collect property in Alaska.

The judicial officer will issue an order an Order Recognizing the Authority of Domiciliary Foreign Personal Representative to Act in the State of Alaska, P-313. See Personal Representative Duties and Responsibilities for information about distributing property and transferring ownership and title.

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Where can I find more information about the different steps in an informal probate?

You can learn more about the:

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Rev. 9 August 2017

www.courts.alaska.gov
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