How To Probate A Will - Estate Online Without An Attorney
Probate A Will/Estate Yourself Online Without An Attorney
One of the most common questions we get asked is ‘how to probate a will/estate’. In the coming sections we will outline each of the mandatory steps. Meaning, giving you a brief outline of each of the probate process steps and show you what you need to do. You will realize fairly quickly, that in many cases you can probate a will online without the need for an attorney. Although under certain circumstances, we recommend you to get an attorney and have dedicated an article to this question: ‘Can I probate a will without an attorney?'
The Probate Process At A Glance
1) Petition the Court
In order to start a probate 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 is going to tell the court who died, who is applying to be the executor (if no will 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). Oftentimes people revise wills and the new will cancels the previous wills, leaving the new will the only valid one. It is important to note that only a physical proof of a will is accepted in court. Verbal instructions, or general knowledge of a different will is not evidence the court is going to consider. Photocopies of a will can be considered by the court and will require extra forms.
If there is no will, the process is relatively the same. The main difference is in who can be the administrator and who will inherit assets from the estate. When someone dies without a will, the process is called Intestate. State laws determine the priority on who should be the administrator of the estate and who will inherit assets.
Note the general priority in both instances is in this order: Surviving spouse, Children, Parents, and Siblings. If there is no immediate family then extended family becomes priority. Learn more about Intestate Succession here.
Prior to becoming the executor/administrator it is not necessary to know specifically what the deceased owned. At this early stage it’s rather an estimate on what the total estate value is. Once the estate is open you will then have the ability to know for certain what are 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. This is accomplished by the petition documents that will be signed by heirs and family members. If anyone refuses to agree or wants to fight the petition, a court hearing is needed. In the court hearing, the contestants need to provide proof why the nominee or will should not be allowed.
Note that every state will have a small estate procedure (each state defines a small estate differently, the ranges are $5,000-$150,000) that is simplified. However, 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 is to notify all the parties of what is happening. Initially the only ones that the court asks for proof of notification are heirs (will or intestate) and any interested party. 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 an interested party doesn't have to be a relative, they only have to file that they want to know what is happening.
The notices that will need to be filed are twofold: the notice that a petition has been submitted and then that an appointment has been made. Some courts require certified mail; others simply require you to certify you mailed the notices.
Sending out notices requires you know how to contact all involved parties and gather their contact details. We recommend doing a credit report to obtain all the creditor's information and debts. For family members reach out to all known family, and for all others consider doing Google searches etc... If someone can't be found after exhausting all efforts you will need to contact court and possibly turn over funds to unclaimed property.
3) Changing Legal Name Of Assets
After the appointment and the notifications you will need to change the name of all the assets from the deceased to the "estate of". Bank accounts and investments are usually the easiest. With the letters of testamentary / administration (official court papers that grant the administrator legal authority) you can instruct all bank/investment accounts to change title. You will need a tax id number, learn how to get a Tax ID.
Physical property (real estate, cars) will require a title/deed change. Note if you are going to sell any real property you can skip this step, and simply sell the property and the estate will receive the proceeds. Changing title can be handled at the close of the transaction. If however the estate will keep/own the asset than a legal change in title is required.
Typically 3 months after the appointment you will need to provide the court with an initial inventory of the estate. This doesn't have to be 100% final. Although at this stage you 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 in payments is as follows:
- Funeral Expenses
- Taxes (Federal, State, Local)
- Estate expenses
Note if the estate will take time to settle due to complexity of 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 funds set aside; you can pay funds to the heirs.
5) Reporting To The Court and Closing The Estate
The last step in probating a will/estate is to inform the court what you have done 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. Additionally proof of distribution is also needed, often it is just an acknowledgment from heirs that they have received assets.
Suggested further readings
FreeAdvice: Can I handle probate without a lawyer?
LegalBeagle: How to probate without an attorney?