If you’re wondering whether or not you can probate a will without a lawyer, the answer is yes — assuming you live in a state that doesn’t require a probate lawyer.
The states that require a lawyer, either directly or in effect because you must hire them to complete certain forms, are:
- Hawaii
- Missouri for estates over $40k
- North Carolina if you don’t live in the same state as the deceased
- North Dakota if going through formal probate
- Texas except in special situations, e.g. the executor is also the sole beneficiary of the testate estate and there are no debts against the estate*.
- Arizona - Can get around a lawyer if you complete a certification and present the Certificate of Completion to the Probate Court*.
Since most states don’t require a probate lawyer, the majority of probate cases do not require one. Anyone who can engage with the court system can proceed through probate without a lawyer.
But… can you probate a will without a lawyer and should you are two different questions. Probate lawyers can be a fantastic resource and are necessary when situations such as beneficiary disputes arise.
Atticus Tip: You don’t have to hire a probate attorney for the entire probate process. You can hire them for very specific questions and actions. This helps reduce the amount you spend on probate attorney fees.
We’re going to cover the basics of probate and show you a bit of what it’s like to go through probate without a lawyer, and we’ll also discuss why you may hire one along the way.
The Probate Process Without a Lawyer
#1 File the will if it exists
Families are required by law to file wills if they exist. The deadlines to file a will vary by state, but filing within a month is generally safe. You should search for a will diligently before accepting that a will does not exist. If a will does not exist, then the estate will be distributed according to intestacy laws.
#2 See if you can skip probate
All states have a way to skip or shorten probate if the estate is particularly small. If you qualify for this option, you should take it.
To figure out if you can skip probate, you need to:
- Determine what the county or state’s small estate affidavit (or other equivalent) requirements are
- Estimate your estate’s probate asset value
- Wait for the required waiting period to file for shortened or bypassed probate is up (usually 15-60 days)
- Make a specific list of probate assets and collect all other sensitive documents during the wait period
- Acquire the appropriate probate forms online or in person and complete them
For more information about avoiding probate, have a look at our guide for How to Avoid Probate
#3 Petition the probate court to appoint an executor
Executors have many synonyms including personal representative and administrator, but regardless of the name, the first major step of probate is to have an executor appointed. If a will exists, the executor will most commonly be named there. If there is no will, however, then families should decide who wants to take on the responsibility of being an executor before beginning the petition process with the probate clerk.
Either way, the probate courts will then require the person petitioning the court to fill out a few probate forms.
What you need to fill out the petition for probate forms:
- A valid last will & testament (if one exists)
- Certified death certificate
- Clarity on who will serve as the estate executor
- Information on any named or known heirs & beneficiaries
When you should hire a probate attorney:
- Heirs or beneficiaries contest the validity of the will
- If interested parties (including the executor) don’t understand the will
- If any beneficiaries dispute aspects or portions of the will
- If the probate forms require an attorney’s signature
- If you want to pay for someone to manage and make the probate process simpler
- If the domicile probate jurisdiction requires an attorney to serve as a Resident Process Agent for out-of-state executors
A few helpful links:
#4 Notify all heirs and creditors
After an executor is appointed, the probate court will give them forms to fill out to verify that executors have notified all heirs based on the will or based on local laws that say who is considered an heir when someone passes without a will.
Another key responsibility of an executor is to file notice to creditors. This is when you reach out to everyone who is owed money by the deceased and let them know they can file a claim to get paid.
Important: only assets that are considered probate assets will be used to pay off debts. Some funds can be passed outside of probate and are free from any possibility of being claimed for debt.
Read more: The difference between probate assets and non-probate assets
What you need to know:
- Who the beneficiaries are via the will
- If there is no will, who the heirs are according to the local intestacy laws.
- How to file notice to creditors
When you need a probate lawyer:
- If you think a creditor is filing an unfair claim against the estate.
- If you can’t figure out what are considered probate assets and what aren’t.
- If you are having trouble figuring out state intestate succession laws
- If you want someone to do this for you.
Useful Links:
#5 Create an estate account, collect probate assets, and build an inventory of assets
After you are an executor and have your letters testamentary or administration in hand, you can control and change all assets owned by the deceased individual.
An executor’s duty is to liquidate (turn into cash) any assets as needed, create an estate account to the estate’s money from various sources into, change asset ownership as needed, and create a complete list of probate assets with details on ownership, value, and designation. This inventory is typically delivered to the probate judge and agreed upon by the beneficiaries.
What you need:
- An EIN number to open the estate account
- A spreadsheet or tool to keep track of your inventory
- Your letters testamentary or administration
When you need a probate lawyer:
- If navigating complicated titling and ownership questions
- If you don’t know how to transfer ownership (most bank accounts and things are easy)
Useful Links:
#6 Pay all taxes, debts, and funeral expenses
Executors must pay off all valid debts, taxes, and expenses before distributing any inheritances.
What you need and must do:
- Effective accounting of existing probate assets, owed taxes, and owed debts. Executors are personally responsible (and sometimes liable!) for paying all debts and taxes appropriately.
- To file the individual’s final tax return
- To file an estate tax return (if applicable)
- If the estate has more than $600 in gross annual income by the time you file, then you must submit an IRS Form 1041.
When you need a probate lawyer or tax professional:
- When you aren’t sure if you are paying the right taxes.
- When you are confused about certain debts
- When you want to contest certain debts
- When you have more debt and/or taxes than assets available (or a case of insolvency). Hire legal counsel as soon as possible in these cases.
- If you want someone to file the taxes for you and double-check their accuracy
Useful Links:
#7 Close the estate and distribute inheritances
After all debts, taxes, and expenses have been paid, you submit a final accounting and detailed report of how the remaining assets will be distributed to beneficiaries. Once the probate court approves this, then you need to distribute the assets and may need to submit a final detailed accounting to the probate court demonstrating you’ve followed the plan. At this point, the probate court will help you officially “close the estate”, and you can disable the estate account and consider your job done.
What you need and must do:
- An exact idea of who gets what based on the will or local laws.
- A detailed list of all accounting and actions taken on behalf of the estate that a probate court and/or judge can easily read. The court will sometimes provide a template for you.
- To submit a distribution plan and reporting to the probate court when you’re ready
- Submit any other forms the probate court requests
When you need a probate lawyer:
- Since this is the make or break point, we generally recommend hiring a probate attorney to check things out, but if you have a simple estate and feel confident in everything, you may be fine.
The bottom line on probating a will without a lawyer
Chances are you don’t need a lawyer for probate, but if you have disputes or a larger estate you would certainly benefit from one. If you have a smaller estate, a clear will, few beneficiaries, and good familial relationships, then you will likely be able to get through probate without a lawyer.. That being said, it can still be smart to hire or consult with a probate attorney along the way, even if you aren’t hiring them for a more substantial engagement.
