Nebraska Probate Form 1000 - Petition For Formal Probate Of Will, Determination Of Heirs, Appointmen

FULL NAME OF FORM: Petition For Formal Probate Of Will, Determination Of Heirs, Appointment Of Personal Representative, Order Setting Aside Prior Informal Appointment In Intestacy,And For Restraining Order

WHEN TO USE THE FORM: This form reflects the instance where a Registrar's Statement of Informal Appointment has been issued, appointing named Personal Representatives. Petitioner seeks probate of a Will naming Petitioner as Personal Representative; an Order restraining the acting Personal Representative from exercising any powers of office; and requesting the appointment of a Special Administrator.

Similar proceedings, with or without the request for restraining order or the appointment of a Special Administrator, are appropriate in situations where:

1. A person filed a Demand for Notice and the applicant for informal appointment failed to give notice under Nebraska Probate Code § 30-2220 of Application for Informal Probate to any person demanding it pursuant to Nebraska Probate Code § 30-2413, as required in Nebraska Probate Code § 30-2419; or failed to give notice under Nebraska Probate Code § 30-2220 of Intention to Seek An Appointment Informally: (1) to any person demanding it pursuant to Nebraska Probate Code § 30-2413; and (2) to any person having a prior or equal right of appointment not waived in writing and filed with the Court, as provided in Nebraska Probate Code § 30-2423.
2. Where the Court, on assumption of intestacy, has appointed a Personal Representative when in fact there is an instrument designated the Will of Decedent naming the same, or different, Personal Representative.
3. Where a Statement of Informal Probate of a Will and informal appointment of Personal Representative has been issued when Petitioner presents a Will executed on a subsequent date revoking the prior Will.
4. Where a Statement of Informal Probate and appointment of Personal Representative was issued pursuant to the terms of a Will executed at a time Petitioner believes that Testator did not have testamentary capacity to execute a Will or that the purported Will was the result of undue influence exerted on the Testator.
5. A Statement of Informal Appointment has been made of a person as Personal Representative when the Petitioner believes the person named as Personal Representative is mentally incapacitated and is not capable of performing the duties of Personal Representative.

COMMENTS: Nebraska Probate Code § 30-2415(a) provides that the Registrar's Statement of Informal Probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding.

Nebraska Probate Code § 30-2412(b) provides that an objection to an appointment can be made only in formal proceedings.

Nebraska Probate Code § 30-2425 provides, among other things, that formal testacy proceedings may be commenced by an interested person filing a petition as described in Nebraska Probate Code § 30-2426(a) in which Petitioner requests that the Court, after notice and hearing, enter an Order probating a Will, or a Petition to Set Aside an Informal Probate of a Will, or to Prevent Informal Probate of a Will which is subject of a pending Application.

Under Nebraska Probate Code § 30-2425, a Petitioner who seeks the appointment of a different Personal Representative in the formal proceeding also may request an Order restraining the acting Personal Representative from exercising any powers of office and requesting the appointment of a Special Administrator.