Hiring an attorney is often worthwhile because you are gaining expert advice on how to best navigate the legal system. However, it can also be expensive. Thanks to the internet, many individuals are interested in saving money if possible by taking the do-it-yourself (DIY) approach through self-help and education. Here, a popular question people ask is if you must hire an attorney to probate a will. This guide will answer this burning question with a step-by-step guide on how to probate a Will without a lawyer.
Is it possible to file probate without a lawyer?
Yes, it is possible to file probate without a lawyer.
It can be a good idea to hire an attorney if the estate in question is complex, or you don’t feel confident navigating the legal system and probate process. Attorneys can ensure that you meet deadlines and avoid mistakes which can cause further delays. Further, then can often help minimize potential disagreements amongst your family members.
However, the court system does not require an attorney in order for a will to be probated. You especially don’t need an attorney if you are the only beneficiary of the estate, the estate’s property only contains common assets, and the will itself is simple and straightforward to follow. It also helps if you have access to self-help and educational materials.
How to file probate without a lawyer - a step-by-step guide
Have you been named the Executor of a loved one’s will? Although you can refuse these duties, if you choose to accept, then the court will likely appoint you as the Personal Representative of the estate. One of your first responsibilities is to file the Will for probate.
As discussed earlier, you are not required to hire an attorney. The court does not require Personal Representatives to be legal or financial experts. Thus, it is entirely possible for these roles to be executed without the assistance of a professional. However, hiring an attorney can prove helpful when an estate is complex or there is a likelihood of family conflict over assets.
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Step 1: petition the court
The probate process won’t begin automatically. The court has to be notified of the death such that the probate process can commence.
As the Personal Representative, you’ll need to file a petition with the court. To do so, you’ll need to obtain the probate petition form, a certified copy of the death certificate, and the valid will that was executed by the deceased. By filling out the form and submitting the required documents, you are informing the court of who passed away, and who is applying to be the executor. You are also notifying the court of the heirs and the assets known at the time.
You still must follow this process even if there is no will. Here, the probate court will refer to probate laws to determine who should be appointed Administrator (rather than executor). Intestate succession laws also determine who should inherit assets. Priority for intestate succession is typically in this order: the surviving spouse, children, parents, siblings. Extended family members may inherit assets if there are no immediate family members.
In the probate petition form, be prepared to provide information regarding the decedent’s assets. At this stage yet, you don’t need to know the specific assets and property they owned. You’ll be providing an estimate of the estate’s total value. The actual value and assets and debts comprising the estate will be confirmed once the estate is open.
Next, the court will require all interested parties to sign and consent to the petition and the will. This includes heirs and family members. The court will set a hearing if anyone wants to contest the will or refuses to sign the petition. Here, the contestant will need to provide proof as to why they don’t agree with the nomination for the executor or administrator.
There’s a chance that you won’t need to petition for probate at all. Most states provide a simplified process for decedents who have a small estate. Each state defines their own limit for what constitutes a small estate. If you believe the estate in question qualifies, be sure to fill out the correct small estate petition or affidavit.
Step 2: notify heirs, beneficiaries, and other interested parties
Once you’ve submitted your petition to probate a will, it’s time to notify all parties of the action you just took. This includes any individual who would have an interest in the estate, such as heirs named in the will and other family members. It can also include any party that has filed with the court as an interested party; anyone can do so if they would like to know what is happening with this estate. The court will ask for proof that you have notified the appropriate parties.
What should you include in these notices? First, you should check with your local court to find out if there are any specific requirements. For instance, some courts may require that you send certified mail. Essentially, these notices must inform the interested party that a petition has been submitted. It should also notify them that an administrator or executor has been appointed.
As the Personal Representative, you are expected to make reasonable efforts to locate and contact any interested parties. This includes reaching out to all known family members, conducting online searches, and even running a credit report so that you can notify creditors.
Step 3: change the legal name of the assets
Next, you’ll need to perform a legal name change to the assets previously owned by the deceased. The name should be changed from the decedent’s name to “The Estate of ______” (insert the name of the deceased.)
Bring your testamentary or administration letters with you as proof that you are authorized to make this change. These are the official court papers that grant you legal authority as the Executor or Administrator. For financial and investment accounts, you’ll need a tax identification number.
For physical property, such as real estate and automobiles, you must perform a deed or title change. You can skip this step for any property you plan to sell, as the title change will take place when the transaction closes. Once you’ve made the sale, the proceeds will go directly into the estate.
During this time, you should be creating and maintaining an inventory of the assets and property belonging to the estate. Eventually, roughly three months after your appointment, the court will require you to provide an initial inventory.
Step 4: Pay creditors and tax payments first
Before you can distribute any inheritances to the decedent’s beneficiaries (heirs), you must first pay any creditors and debts.
Here is the order in which you should prioritize payments:
Federal, state, and local taxes
You may be forced to sell physical property and liquidate assets in order to pay off taxes and debt. An estate sale is a great way to get this done quickly and efficiently. For more information on how to hold an estate sale, click here.
If you feel concerned that the estate will take a long time to settle, know that you can petition the court to set aside funds for the surviving spouse and minor children of the decedent. That way, you can ensure that their basic needs are taken care of while the estate goes through the probate process.
Step 5: Pay funds to heirs
Once you have finished paying funeral expenses, taxes and debts, you can then proceed to make distributions to the heirs per the instructions in the Will. Learn more about the differences between heirs and beneficiaries, as well as their respective rights, here.
Step 6: Report back to the court and close the estate
Once you have completed steps 1 through 5, it is time to close the estate. You will notify the court by submitting a final petition. It should include a final accounting of all the assets compiled, expenses made, and remaining assets distributed to heirs. If at this time there are any assets remaining in the estate, you can ask the court to grant a final distribution. Many courts provide a template to assist you in this accounting process.
You must also notify all interested parties regarding the closing of the estate and provide them with the final accounting. The court requires proof that assets were properly distributed through an acknowledgment from heirs stating that they have received the assets due to them.
Set Up Your Estate Plan Without the Help of a Lawyer
This step-by-step guide provided an overview of how to probate a Will without a lawyer. Most probate courts themselves offer great resources that provide education and materials on how the probate process works, as well as tools and templates to assist the Executor or Administrator throughout the probate process until they close the estate.
Although you may choose to hire an estate planning attorney to assist you through the process, it is not required. There are many educational materials and resources available to support you through the process.
For instance, here at Trust & Will you can find our Learn Center, an expansive library of estate planning articles and guides. We aim to help demystify all things estate planning so that any individual can feel more confident and empowered stepping into their role, whatever role that might be.
Know that you can also create your Will and other estate planning documents without hiring an attorney by using a service such as Trust & Will. Find out how to get started on our online, user-friendly platform.
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