No state requires that you hire an attorney to guide you through the probate process if you’ve been named as executor in someone’s will. This doesn’t stop some counties from requiring it, however. Before you head to the courthouse with the will in hand, make an honest assessment of the estate and familiarize yourself with state and county rules.
You can act as executor or administrator of a probate estate without an attorney in most cases. To be successful, you'll have to understand the local rules in your state and county, as well as the laws regarding the rights, duties and responsibilities of an estate administrator or executor.
When You Might Need a Lawyer
Probate is more complex in some states than in others, and the estate itself might throw up some warning flags that you need professional legal help. Consider contacting an attorney if:
- The deceased didn’t leave a will. This is called an intestate estate and can involve more complex probate rules.
- The beneficiaries and heirs are bickering and unhappy. There’s a possibility one or more of them might challenge the will.
- The estate doesn’t qualify for any of the simplified proceedings that are available in most states, or it includes unusual assets, such as mineral rights or a patent.
- The decedent didn’t leave enough assets and cash to cover all his debts. This is an insolvent estate and you could be held legally liable in some states if you pay the wrong debts from what cash and property is available.
- The estate owes state or federal estate taxes.
- Your state hasn’t adopted the Uniform Probate Code. The UPC usually makes the probate process easier.
If you start probate proceedings then discover that you’re in over your head, you can hire an attorney mid-process – it’s not too late. You should also consider hiring an accountant for the estate as well.
You can’t ask courthouse staff for help. Other than providing you with necessary forms and directing you to rules regarding procedure, they’re not allowed to assist or do anything that could be construed as giving legal advice. The judge can't give you legal advice, either, and neither can his law clerks.
Open a Probate Case with the Court
If you do proceed without legal counsel, you must first file an application or petition with the court to open probate, along with the will and the death certificate. In some states, either you or the court must publish a notice to interested parties that the estate is about to enter probate. The court will then typically schedule a hearing where the judge will declare that the will is valid – if it is. You may have to bring the will’s witnesses to the hearing so they can vouch that it’s the document they saw the deceased sign.
The judge will authorize you to act as executor. You'll then need a tax ID number for the estate from the Internal Revenue Service – the estate can’t transact financial business under the deceased’s Social Security number after his death. You should also open an estate bank account, and you'll need the tax ID number to do this.
Take an Inventory of Assets
Most states require that you next prepare an inventory of the estate’s assets and submit it to the court early in the probate process. Some states have forms available for this – you can check your state’s website or ask the court clerk. The forms usually ask for values of each asset so you might have to arrange to have some property appraised.
Take Care of Debts and Taxes
The deceased’s creditors must be notified that the decedent has died and that the estate is in probate. Depending on your state, you may be able to simply publish a notice in the newspaper, but some jurisdictions require that you mail official notice to all those you’re able to identify from looking over the deceased’s personal paperwork and bank accounts. You must let them know how long they have to make claims for the money they’re owed – this depends on your state's rules. As creditors make claims, you’re responsible in most states for deciding if they’re legitimate and whether they should be paid or denied. If estate or income taxes are due, you must prepare the returns and pay the taxes from estate funds. Only very large estates must file returns; if you're the executor of an estate worth millions of dollars, contact a CPA to help you.
Distributions to Beneficiaries
Your final responsibility is to distribute the deceased’s remaining property, after all debts and taxes are paid, to the beneficiaries named in his will. Most states require that you get court approval first. You’ll probably have to file a final accounting, explaining everything you did on behalf of the estate, and provide receipts and bank records for the transactions. Once the debts are paid and the property is distributed, after your final accounting is filed, the court will likely close the case and you'll be relieved of your duties.