In general terms, probate is the legal process that occurs after someone passes away. It involves validating a will, if one exists, and appointing an executor to handle the distribution of assets to the deceased’s beneficiaries. 

During the probate process, all assets and liabilities belonging to the deceased are located and assessed for value. When that process is complete, taxes and debts are paid. Finally, the remaining assets are distributed to beneficiaries. 

If no will exists, the process is much more complicated. The courts must decide who will handle the execution of your estate. They will be involved in the process from beginning to end, and probate may take much longer as a result. 

All estates will go through the probate process unless the deceased established a legal trust prior to their passing. If a proper legal trust was established, any assets it contains can be passed directly to heirs without the assistance of the court.

A probate lawyer is a licensed attorney who works with the executors and the beneficiaries of an estate to settle the affairs of the decedent. They guide the entire process from beginning to end, and can relieve some of the stress and emotional anguish experienced by the bereaved.

• Tasks that a probate lawyer may handle include:
• Collecting proceeds from life insurance policies
• Identifying and securing estate assets
• Arranging for the payment of debts
• Resolving income tax issues
• Managing the estate checking account
• Preparing and filing relevant documents required by the court

In many cases, it makes sense to hire a probate attorney who is familiar with the probate process. Their services are often a fraction of the value of the estate, and their assistance can take a lot of pressure off of the family.

If you’re wondering, can I handle probate without a lawyer? Before plunging ahead on your own, make sure to understand the advantages and disadvantages of doing so. 

There are a few benefits in handling the process by yourself, or with the assistance of family and friends. 

Saving Money

This is the number one reason for handling the probate process on your own. If the estate has few assets and no complicated financial arrangements to untangle, a nonexpert may be able to manage it adequately.

Availability of Online Resources

You may be able to find online resources and books to help guide you through the process. However, keep in mind that these documents are likely to be very general. There may be specific circumstances that would be better addressed by an attorney.

There are also cons and potential difficulties associated with not hiring a probate attorney. 

Time-Consuming

Probate is not an easy process. On average, it can last between 7 and 10 months. There are multiple legal forms that will need to be filed with the court. If you work full-time or have a family, the time spent dealing with the probate court can be long and arduous.

Complicated

In situations where the will is contested, or where there are substantial tax liabilities or other debts, it makes sense to hire a lawyer. Doing so can reduce the time you spend in court and help to resolve conflicts quickly. It can also help protect the assets that will be passed to beneficiaries by potentially reducing the debt owed.

Specific Circumstances 

If the deceased owned less-common assets, such as oil or mineral rights, a patent, or another type of intangible asset, it would be wise to engage the services of a knowledgeable probate attorney. 

In cases where there is not enough money in the deceased’s estate to cover debts, the estate is insolvent. A probate lawyer can assist with navigating through insolvency.

State Does Not Follow Uniform Probate Code

If the state does not follow the Uniform Probate Code, there may be a more extensive process involved to close a probate case. Seeking the advice of a probate attorney can reduce the possibility of mistakes and ensure a smoother conclusion.

So, can I handle probate without a lawyer? 

Before making a decision, you must understand the full probate process. There are a number of steps involved. All of them will require significant legwork to go through.

1. Petitioning the Court

The beginning of the probate process involves petitioning the court. A probate petition is a set of legal documents that informs the court who died, who is applying to be the executor, who the heirs are, and what general assets are known at that time. 

The probate petition must include a copy of the death certificate and copy of the will. If there is no will, the petitioner must apply to be the administrator of the estate. 

The legally valid will is the most recent will with the original signature. In many cases, people choose to revise their wills. It must be ensured that the will provided is the newest. 

Courts only accept physical proofs of wills. They will not consider oral promises or the general knowledge that a will exists as a substitute for an actual, physical will. 

If no will exists, the administrator will apply to be executor of the estate. The court will listen to heirs, as well as the executor, to determine how assets will be distributed. 

When someone dies without a will, they are declared “intestate.” In these cases, state laws will dictate the distribution of assets. Normally, the line of intestation begins with the spouse, then goes to children, parents, siblings, and extended family. 

An estimation of the decedent’s assets must be provided. It does not need to be exact, but should provide a general assessment of the value of the property involved. 

Once all relevant documents are submitted, the court requires that potential administrators, beneficiaries, and heirs sign the related papers. If they do so, the probate process may begin.

2. Notifying Heirs, Creditors, and Interested Parties

The next step in the probate process is to notify all of the interested parties of the action. Interested parties include the attorney, potential administrators, and heirs. An interested party does not 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. Some courts require certified mail, while others simply require you to certify that the notices have been mailed. 

3. Changing the Legal Name on Assets

Once the appointment and notices are complete, you will need to change the name of all assets from the decedent’s name to “The Estate of (The Deceased).” Bank and investment accounts are typically the easiest types of property names to change. 

Physical property such as real estate or cars may require a title or deed change. However, if you plan to sell any property, you can do so and have the receipts directed to the estate itself. If property is to be transferred to heirs, then titles and deeds may be transferred at the end of the probate process. 

Approximately three months after the probate process has begun, you’ll need to provide the court with a thorough assessment of the property owned by the deceased. While this still does not need to be 100% accurate, it should represent what you know the deceased to have owned and be as complete as possible.

4. Paying Creditors, Taxes, Expenses, and Heirs

Can I handle probate without a lawyer? 

If an estate is particularly complex, it may take a significant amount of time for the court to fully settle the case. This can be difficult in situations where there are spouses or minor children who need access to the funds for their daily living expenses. 

In these cases, the administrator of the estate may petition the court to release funds on their behalf while the case is still pending.

Once the case is fully settled, funds and property held by the estate will be distributed to heirs. However, any expenses related to funeral costs, taxes, and estate expenses must be paid before the assets are released to beneficiaries.

5. Petition the Court to Close the Estate Case

At the end of the process, the court must be petitioned to close the estate case. This procedure involves taking a final assessment of all assets and ensuring they have been transferred to the requisite heirs. Receipts of final payments made from the estate must be presented to the court.

In addition, all interested parties—the attorney, administrator, and all heirs—must acknowledge that they agree with the close of the case. If they have received property from the estate, receipts or a written acknowledgment of receipt must be given. 

Clearly, the probate process is quite lengthy and requires time to handle. If a situation occurs that slows down the procedures, it can be quite difficult to manage without the assistance of a legal representative. 

Unless you feel fully confident that you can control the probate procedures, it may be best to engage in the services of a knowledgeable attorney familiar with the estate planning and probate process.

At Morgan & Morgan, we can help you overcome the difficulties of the probate process. With thousands of cases under our belts, we can help reduce the stress of this very difficult time. 

Use our convenient online form to schedule a free case consultation today.