how to handle an estate without a lawyer

Here are the general steps:

• Get a copy of the decedent’s death certificate
• File a Petition for Probate at the decedent’s county probate court (ex., Los Angeles Superior Court – Probate Division)
• Attend your Probate Hearing
• Once your Petition for Probate is granted, obtain letters of administration authorizing you to act on behalf of the estate;

More items...

Full Answer

Are You a good candidate for handling an estate without a lawyer?

Here are some circumstances that make you a good candidate for handling the estate without a professional at your side. Not every one of them needs to apply to your situation—but the more that do, the easier time you will have. Most or all of the deceased person's property can be transferred without probate.

Can you be an executor of an estate without an attorney?

TL;DR (Too Long; Didn't Read) 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.

Do I need a lawyer to wind up an estate?

Many executors decide, sometime during the process of winding up an estate, that they could use some legal advice from a lawyer who's familiar with local probate procedure . But if you're handling an estate that's straightforward and not too large, you may find that you can get by just fine without professional help.

Do I need a lawyer to probate an estate?

No state requires you to use a lawyer to probate an estate, but probate can be complicated, and you can be personally liable if you do something wrong. One minor omission, one failure to send a copy of the petition, or a missed deadline can cause everything to come to a grinding halt.

When do you need a lawyer for probate?

We STRONGLY advise seeking legal counsel for probate if the estate is insolvent (more debts than assets).

What is the purpose of a representative in probate?

Additionally, the representative is also responsible to find out what debts the deceased had and devise a plan to pay those debts. Remember, only assets that pass through probate are liable to pay debts. Learn which assets pass through probate here.

What do you need to report a criminal case?

What you will need: Good documentation of what you have done and the court will provide you with a template to use to report your actions.

Can you change assets owned by a deceased person?

This may be the most straightforward part. With the court appointment, you will now be able to change assets owned by the deceased to the “estate of…”

Do you need a lawyer to probate an estate?

No state requires you to use a lawyer to probate an estate, but probate can be complicated, and you can be personally liable if you do something wrong. One minor omission, one failure to send a copy of the petition, or a missed deadline can cause everything to come to a grinding halt.

Can you go through probate without legal advice?

If the estate you are working with is simple and you have clear instructions and copies of the forms you need, you may be able to go through the probate process without getting legal advice, but if complications arise you will need legal help of some kind.

About the Author

Linda C. Ashar is a lawyer, educator, horse breeder, freelance writer, and artist. She has practiced law for more than 25 years before the Ohio and Federal Bars. She is a senior shareholder in the firm of Wickens, Herzer, Panza, Cook, & Batista Co. in Avon, Ohio.

Top reviews from the United States

There was a problem filtering reviews right now. Please try again later.

Top reviews from other countries

Be warned this book is intended for the American market, and whilst it may contain very useful advice if you are dealing with in Estate in America it is of no significant practical use in the UK.

What happens if there is not enough money in an estate?

But if it looks like there won't be enough money in the estate to pay debts and taxes, get advice before you pay any creditors. State law will set out the order in which creditors get priority, and it's not always easy to figure out how to parcel out the money. The estate won't owe either state or federal estate tax.

How many states impose estate taxes?

More than 99% of estates don't owe federal estate tax, so this isn't likely to be an issue. But around 20 states now impose their own estate taxes, separate from the federal tax—and many of these states tax estates that are valued at $1 million or larger.

Do you owe estate tax?

The estate won't owe either state or federal estate tax. More than 99% of estates don't owe federal estate tax, so this isn't likely to be an issue. But around 20 states now impose their own estate taxes, separate from the federal tax—and many of these states tax estates that are valued at $1 million or larger. If you will be responsible for filing an estate tax return with the state where the deceased person lived or owned real estate, you should get legal and tax advice. An estate tax return is not a do-it-yourself job.

Is probate easier in states?

Probate is easier in states that have adopted the Uniform Probate Code (a set of laws designed to streamline probate) or have simplified their own procedures. The estate doesn't contain a business or other complicated asset.

Do you need probate if you have a trust?

But you won't need probate if all estate assets are held in joint ownership, payable-on-death ownership, or a living trust, or if they pass through the terms of a contract (like retirement accounts or life insurance proceeds). The estate qualifies for simple "small estate" procedures.

Can executors wind up estates?

Many executors decide, sometime during the process of winding up an estate, that they could use some legal advice from a lawyer who's familiar with local probate procedure . But if you're handling an estate that's straightforward and not too large, you may find that you can get by just fine without professional help.

Can you transfer property without probate?

Most or all of the deceased person's property can be transferred without probate. The best-case scenario is that you don't need to go to probate court, because assets can be transferred without it. This depends on the planning the deceased person did before death—you can't affect it now.

How to open probate without legal counsel?

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.

What happens if a decedent doesn't leave enough assets?

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.

How to notify creditors of a deceased person?

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.

What is it called when a deceased person doesn't leave a will?

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, ...

What is the final responsibility of a deceased person?

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.

Does the UPC make probate easier?

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.

Can an executor of an estate transact financial business?

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.

Who should not be involved in the division of an estate?

Rule # 1 - Only immediate heirs should be involved in the division process during the settlement of the estate. All others (spouses, children, grandchildren, in-laws and friends) should NOT participate, especially at the start of this process.

What are the problems that arise at the time of a division or settlement of an estate?

Many of the problems that arise at the time of a division or settlement of an estate are caused by interference from spouses or children of the heirs, not the immediate heirs themselves.

What are the main causes of conflict during the division process of an estate settlement?

3. Most experts agree that personality differences are the main cause of conflict during the division process of an estate settlement. Without understanding these differences, keeping the peace and avoiding conflict will be much more difficult to accomplish.

Can an estate be divided without an attorney?

Many attorneys believe that most problems related to dividing an estate could be handled outside of the courtroom. Those who counsel individuals about family feuds and personal conflicts that arise during estate settlements usually agree that most could be solved without attorneys if people would just listen to one another, communicate, ...

What happens if the executor denies a claim?

If the executor denies a claim, the creditor can appeal that to the probate court. The executor also needs to determine if any taxes are due by the estate, including federal estate and income taxes, state estate and income taxes, local property and income taxes, and any other types of taxes. The executor must prepare and file any tax returns due ...

Who has to obtain approval from probate court before selling?

The executor might have to obtain approval from the probate court before selling, giving beneficiaries and others with an interest the opportunity to object to a sale. Or the executor might have discretion to sell assets.

What is probate in 2021?

By Katie Kao. Probate is the legal process that ensures your debts are paid and legal title to your assets is transferred to the appropriate heirs and beneficiaries. If you have a will, the probate process will determine whether the will is authentic and valid.

How long does probate take?

During the process, an executor will be appointed to administer the estate. Probate can take anywhere from a few weeks or months to years to wind up the estate. Probate is necessary to wind up all estates, but having a last will ...

What happens at the first hearing of a will?

Also at the first hearing, the court decides whether to declare the will submitted to the court to be valid. The executor might be required to present to the court one or more of the witnesses to the will to testify that he or she did witness the deceased sign the document.

What is the first step in probate?

At the first hearing the court usually formally appoints the executor and authorizes him or her to act on behalf of the estate. This often is known as grant of probate. After receiving a grant of probate, the executor must obtain a federal tax identification number for the estate. The estate can’t conduct business using the deceased’s Social Security number or other taxpayer ID number. In addition, the executor should open a bank or financial account for the estate.

What documents are needed to open probate?

The names and content of the documents required to start the probate process vary around the country but most often are called a petition to open probate. Usually the initial filing must include the death certificate and the original version of the last will and testament.

What happens to a will if there is no will?

State laws on intestate succession will determine who gets the property when there's no will. There are usually classes of heirs, which determine the order of distribution and the share of the estate. The most common and easily identifiable heirs are surviving spouses, children, parents, and any blood relatives. The closer relatives (usually a surviving spouse and the decedent's children) will inherit the property rather than distant relatives. Distant relatives will take the assets only if there are no surviving spouse and children. Friends and charities do not receive anything under intestate succession. If there are no surviving family members, most states will make the entire estate go to the state.

What happens if a will is not valid?

However, if there's no will or if a will is found to be invalid, the probate will proceed as an intestate estate.

How does probate work?

After appointing a personal representative and identifying the heirs, the probate court will determine what assets to distribute and how to distribute them. The laws on how to distribute the estate assets vary greatly by state and by the type of property. Some types of property will be transferred to someone else without probate upon ...

What happens after the probate process is completed?

After making final distribution of any remaining assets, the court will issue a final discharge order. After that, the probate process comes to an end and the case is closed.

How long does it take to get a will probated?

Depending on the case, the probate process can take years, or even decades. Understanding state laws on intestate succession can be difficult because there are several steps involved in the probate process. Moreover, probate can be more costly and time-consuming when there's no will. If you have any issues or questions about probate or estate planning, contact a probate lawyer in your area and get a free case review.

What does a personal representative do?

The personal representative has to determine the value of the estate, collect probate assets, handle any legal disputes and claims against the estate, pay debts and taxes, and manage other expenses owed by the estate.

Who inherits property in intestate succession?

The closer relatives (usually a surviving spouse and the decedent's children) will inherit the property rather than distant relatives. Distant relatives will take the assets only if there are no surviving spouse and children. Friends and charities do not receive anything under intestate succession.

How to file for executor of estate without will?

These basic steps will show you how to file for executor of an estate without a will: 1. Determine Your Priority for Appointment. Probate rules are established by your state and include identifying who can serve as an administrator and the priority of appointment.

Who can serve as administrator of an estate?

In some states, when no family member has come forward to administer the estate, then a creditor of the deceased may serve as administrator. 2. Receive Written Waivers From Other Candidates. You need to receive a written waiver from other candidates for administrator that have higher priority.

Why do you need a probate bond?

6. Secure a Probate Bond. It is common court practice to require a bond to protect the interest of the deceased’s estate, its heirs and creditors. The bond also protects the administrator to ensure they fulfill their duties responsibly.

What is the purpose of a will?

Your will has an important function beyond providing instructions for the distribution of your property. It also names the person who will serve as the executor your estate. The executor has the job of paying your final bills, and distributing any remaining assets.

What is it called when someone dies without a will?

When someone dies without a will, it’s called dying “intestate. ”. In these situations, no one may have legal authority to close the deceased’s estate. Probate court can step in to select someone to perform these duties or a loved-one can volunteer to fill the vacancy.

Where does probate take place?

In most states, probate will occur in the county where the deceased had residence. You need to contact that court to understand their filing requirements and timelines. Frequently you will need to file a Petition for Probate along with the Notice of Petition to Administer Estate.

Is it important to serve as executor of an estate?

Serving as the executor of an estate is an important and time-consuming responsibility. Each state has its own laws detailing an executor’s responsibilities and the timeline for performance. You can be held personally liable for damages if you don’t strictly adhere to the probate laws.