How to probate an estate without an attorney
Probate an estate without an attorney
One of the most common questions we get asked is: How do I probate an estate without an attorney? Can I do it myself?
In the coming sections, we will outline each of the mandatory steps needed to do probate without an attorney, giving you a brief outline of each of the probate process steps and showing you what you need to do. You will see that in many cases, you can probate an estate without an attorney.
In some circumstances, we do recommend you obtain a probate attorney. You can read more about those situations in Can I probate a will without a lawyer?
The probate process at a glance
1) Petition the court
In order to start the probate process with or without an attorney, you will need the following:
- Probate petition
- Death certificate
- Valid will (or know for sure there is no will)
The probate petition is a specific set of probate forms the court requires to open an estate. The petition tells the court who died, who is applying to be the executor (If there is no will, that person is called an administrator), who the heirs are, and what general assets are known at that time.
A valid will is the most recent will with original signature(s). People often revise their wills, and any new will cancels the previous wills, leaving the new will as the only valid one. Note that courts only accept physical proof of a will. A court will not consider verbal instructions or general knowledge of the existence of a different will. A court can consider photocopies of a will, but that may require extra forms.
If there is no will, the process is essentially the same. The main difference lies in who can be the administrator and who will inherit assets from the estate. When someone dies without a will, they are said to have died "intestate." State laws determine the priority of intestate succession, i.e. who should be the administrator of the estate and who will inherit assets.
Note the most common priority in both instances follows this order: surviving spouse, children, parents, and siblings. If there is no immediate family, then the extended family may inherit. Learn more about Intestate Succession.
The probate petition will ask for information about the deceased's assets. Prior to becoming the executor or administrator, you do not need to know specifically what the deceased owned. At this early stage, you are simply providing an estimate of the total estate value. Once the estate is open, you will then confirm all the assets and debts of the estate.
In order for the court to accept the petition and grant the official appointment, the court requires that all interested parties (heirs, family, etc) consent to the petition and the will by signing the relevant petition documents. If anyone refuses to sign or wants to fight the petition, the court will set a hearing. In the court hearing, the contestants must provide proof of why the nominee for executor or administrator or the will should not be allowed.
Note that every state has a simplified small estate procedure, and each state defines a small estate differently, ranging from under $5,000 in assets to under $150,000 in assets. You must file the correct petition to qualify for the simplified procedures.
2) Notifying heirs, creditors, and interested parties
The next step in probating a will with or without an attorney is to notify all the parties of the action. Initially, the court will ask for proof that heirs (will or intestate) and any interested party were notified. An interested party is anyone that has an interest in the estate (heir) or anyone who files with the court as an interested party.
Note that an interested party doesn't have to be a relative; they only have to file that they want to know what is happening.
Notice must be given that a petition has been submitted and that an appointment of an administrator or executor has been made (when that occurs). Some courts require certified mail; others simply require you to certify you mailed the notices.
Sending out notices requires you to know how to contact all involved parties and gather their contact details. We recommend performing a credit report to obtain all creditors' information and debts. For family members, reach out to all known family. For any others, consider doing online searches.
If you are unable to locate an interested party after exhausting all reasonable efforts, you will need to contact the court and possibly turn over funds to unclaimed property.
3) Changing legal name of assets
After the appointment and notices are complete, you will need to change the name of all the assets from the deceased's name to "The Estate of [The Deceased]." Bank accounts and investments are usually the easiest. With the letters of testamentary / administration (official court papers that grant the executor or administrator legal authority), you can instruct all bank or investment accounts to change the title. You will need a tax id number (learn how to get a Tax ID).
Physical property (real estate, cars) will require a title or deed change. Note that if you are going to sell any real property, you can skip this step and simply sell the property. The estate will receive the proceeds. Changing titles can be handled at the close of the transaction. But if the estate will keep or own the asset, then a legal change in title is required.
Typically within three months after the appointment, you will need to provide the court with an initial inventory of the estate. This accounting doesn't have to be 100% final, though by this stage you probably will have gathered assets and have a pretty good understanding of what is in the estate.
4) Paying creditors, taxes, expenses, and heirs
It is very important that you do not pay any funds to heirs until you have paid all estate expenses or know for sure that you have sufficient funds to pay all expenses. The priority of payments is as follows:
- Funeral Expenses
- Taxes (Federal, State, Local)
- Estate expenses
If the estate will take significant time to settle due to the complexity of the assets, you can petition the court to set aside funds for spouses and minor children. After funeral expenses, creditors, and taxes are known and either paid or have funds set aside, you can make distributions to the heirs.
5) Reporting to the court and closing the estate
The last step in probating an estate with or without a lawyer is to inform the court of your actions and petition the court to close the estate. This step involves providing a final accounting (some courts provide a template; others require you to do it all yourself) which informs the court of all the assets gathered, expenses incurred, and assets distributed to heirs. Should any assets be left in the estate, the final petition asks the court to grant a final distribution and accept the accounting.
Note that interested parties must be either notified and/or accept the final accounting. The court will also require proof of asset distribution, which is often simply an acknowledgment from heirs that they have received the assets.
As you can see, the probate process is largely the same with or without an attorney. Choose any of our EZ-Probate Plans and we can help guide you through the process and involve an attorney when needed. You can upgrade to a higher plan at any time without a penalty if you find you need to consult with a lawyer later on—we offer plans with and without attorney counsel so you can complete probate more affordably either way.
Still unsure if you can probate an estate without an attorney and what makes sense for your case? Schedule a consultation with one of our expert team members who can help you figure out the right next steps for you. Or, get help choosing a probate plan with our easy-to-use quiz.