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FAQs

Do I need An Attorney For Probate?

In most states the answer is no! Only Texas and Iowa require an attorney by law. Florida requires an attorney if there are more than two heirs. EZ-Probate will prepare all the necessary court documents and provide you with step-by-step instructions so you can complete probate yourself.

In the rare instance an attorney is needed, you can hire them by the hour for the limited scope of your need. For the vast majority of estates, no attorney is needed.

When Is Probate Needed?

Probate is needed when assets of the deceased are in their single name, do not automatically transfer to someone else after death, and now require a court order to transfer to the rightful heirs.

Examples of Automatic Transfers: Joint Ownership With Rights Of Survivor, Retirement Accounts with A Beneficiary.

What Is A Valid Will?

Generally speaking, a valid will is one that is witnessed (typically by two or more persons) and/or notarized. Many wills now include a “self-proving” statement of affidavits by the witnesses.

What If There Is No Will?

If there is no will, state law will determine who the heirs are through a process called Intestate Succession. The rules vary by state but generally obey the following priority:

  1. Surviving Spouse
  2. Surviving Children (if any child predeceased and had children, those children get the share)
  3. Surviving Parents (if no spouse and no children)
  4. Surviving Siblings (if no parents)
  5. Surviving Uncles/Aunts (if no siblings)
  6. Surviving Nieces/Nephews

What If I Cannot Find The Will?

You will need to find the original will or have a photocopy of the will. Otherwise the estate will be treated as if there is no will. Often the will can be found at the attorney’s office or in a safety deposit box.

What If I Only Have A Copy Of The Will?

Although possessing the original will is ideal, you can petition the court to accept a photocopy of the will. The process simply requires a few extra forms.

What Is An Executor?

The executor (executrix if female) is the person(s) named in the will to be in charge of the estate. Anyone can be nominated as executor in the will. Executors do not need to be family members.

What Is An Administrator?

An administrator is the person responsible for the estate when there is no will. Not anyone can be an administrator. The same priority of inheritance that governs Intestate Succession is in place for priority of the administration.

The rules vary by state but generally obey the following priority:

  1. Surviving Spouse
  2. Surviving Children (if any child predeceased and had children, those children get priority)
  3. Surviving Parents (if no spouse and no children)
  4. Surviving Siblings (if no parents)
  5. Surviving Uncles/Aunts (if no siblings)
  6. Surviving Nieces/Nephews

Persons with prior priority must renounce their right to administration to allow a person with lower priority to serve as administrator.

Can Someone Challenge The Will?

Yes, anyone can challenge the will. However, there are only three effective challenges:

  1. There is a more recent valid will.
  2. The will was forged.
  3. The person making a will was not in their full mental capacity.

Will I Have To Go To Court?

Most likely, yes. Each state is slightly different, but most will have an initial hearing allowing anyone to challenge the petition. There are few legitimate challenges (see Can Someone Challenge The Will?). Many states will waive the hearing if all involved (next of kin, and those in the will) waive the hearing.

What If The Will Is In A Safety Deposit Box And Bank Won’t Open It?

This situation is very common. You can petition the court to have limited power (not full probate) to open the contents of the safety deposit box in order to obtain or find out if the will is there.

What If The Attorney Has The Will And Refuses To Give It Up Unless They Are Hired?

Unfortunately, this situation is not uncommon! In fact, there are standard petitions and demand orders from the court compelling the attorney to provide the will to the family.

How Much Will Probate Cost?

The cost of probate can vary greatly depending on the particular circumstances, but, these are the main costs:

  1. Court Fees- These vary by state and the size (value) of the estate. Typically $100-$500
  2. Legal Fees- If you hire an attorney, expect to pay $3,000-$7,000 for even simple estates. Many will charge 5% of the value of the estate, which can become tens of thousands of dollars. EZ-Probate charges a flat fee of $500, drastically reducing the cost to administer the estate.

What If There Are Debts?

Estates holdings debts are very common. The debts must be paid or handled.  

Only valid debts are allowed, and the debtors have to make a claim, but the executor/administrator is obligated to notify all known debtors. Valid claims have a statute of limitation (a period during which they must be brought), typically three to seven months after the estate is opened and public notice is provided. The priority of payments in an estate is as follows:

  1. Admin Expenses (court fees, legal fees, management of estate)
  2. Funeral Expenses
  3. Taxes (federal, state, local, income, inheritance taxes)
  4. Creditors
  5. Heirs