How to File for Probate Without a Lawyer

Determine if You Need to Go to Court

If you’ve recently been named the executor of an estate, within the first month after your loved one has passed, you will need to determine if your loved one’s estate needs to go through the court administered probate process.

To learn more about whether the estate needs to go through Court Probate, read our post that talks about the main factors in determining whether going to probate court is necessary and what to do about the will (if there is one): What Happens if No Probate is Filed? Don’t Stress, 70% of Estates Don’t File! – After They Pass

Decide If You Need a Lawyer:

If you’ve already determined that there are assets that will need to go through probate court to be transferred, donated, or distributed, your next step will be to decide if you want to hire a lawyer to file probate on your estate’s behalf and/or represent the estate in court on your behalf. Read our post Do I Need a Lawyer to File for Probate? to learn more.

5 Tips on Filing for Probate Without a Lawyer:

If you’ve determined that you have assets that need to go through Court Probate and your estate does not require a lawyer based on unique circumstances, it is possible to probate a will and/or estate without a lawyer. The following are tips on how to DIY probate.

1. Find out what probate court you will need to file in:

The court is typically in the county where the assets are located (like the home of the decedent) or where they were registered to vote. If neither of those offer obvious answers, look where the decedent’s vehicle was registered or even the address on his/her driver’s license or passport.

It’s worth mentioning that the court may not always have an obvious name and may be called circuit court or surrogate’s court instead of just county probate court. You may be able to find a listing of the probate courts by going to your state’s supreme court website.

2. Determine what type of probate you need to file:

In most states and counties there is a summarized type of probate that can be filed for estates with very little assets, where there will be no one contesting the will, no other familial complications or other areas of controversy. This is the cheapest and fastest type of probate to file and is typically called Summary Probate or Informal Probate.

If you live in Ohio, you can take our FREE probate assessment to find out what type of probate you should file for your estate. Otherwise, this typically involves a tedious task of reading the details about each probate type on the probate court’s website to determine which type of probate for which you can file or hiring a lawyer.

Factors that can affect the type of probate that can be filed:

• • Size of estate, estates that have under a certain dollar threshold in assets, can often qualify for summarized estate proceedings
  • If there are more debts than assets (i.e. an insolvent estate)
  • If someone is contesting the will or how assets are going to be distributed
  • Types of assets (for example, if the only asset is real estate, some counties offer a real estate only summarized type of probate)
  • Types of expenses (for example, if there is only a small amount of assets and the funeral expenses were more than or equal to the estate assets, a summarized type of probate may be able to be filed)

TIP: We’ve noticed that for smaller counties, the probate court websites have very little details and information; however, probate court websites from large counties, typically have significantly more information and details about types of probate, information packets/filing instructions, and more thorough forms. Many of the larger counties also offer FREE legal advice for questions about forms and filing.

3. Go to the local probate court’s website and download the probate forms.

In the rare instances where the county probate court does not have its own probate court forms, you may be able to get the forms from the state’s supreme court website. In Ohio for example, the supreme court has all the probate court forms available online.

If you download forms from the state supreme court website, you will need to fill in the details about the county probate court in which you will be filing. For example, you will need to get the county’s judge name and court address and update that information.

4. Download instructions or form packets provided by the court to help you fill out the forms:

See TIP from #2 if the county you are filing in, does not provide this information. In some situations, the court will have a packet of forms that will need to be completed and filed with the court based on the type of probate you are filing. If you are unable to find a packet of forms, it may not always be obvious what forms need to be filed and when they need to be filed. Not all the forms are needed depending on the type of probate you are filing and not all the forms are filed at the same time. Don’t worry, if you run into this situation, see TIP #5.

5. Leverage the county’s (FREE) legal support contact:

You can call the local probate court and ask if they have FREE legal support for questions related to probate court forms and filing. Second, sites such as legalzoom.com, legalsheild.com and rocketlawyer are excellent options for affordable probate advice. They are hundreds of dollars cheaper than meeting with a traditional probate or estate lawyer. IF the county you are filing in doesn’t provide help, usually larger counties in the state do. You could always call one of the bigger counties if your questions are not  county specific.

DIY Probate Process – Forms and Steps:

The court administered probate process typically follows the following steps regardless of whether you are DIYing the estate or have an attorney representing your estate.

• Initial Petition:

This is where you request that the court grants you the authority to administer the estate and file the will with the court:

Forms Used: This step typically includes several forms such as:

1. 1. A form that lists all heirs/beneficiaries including the surviving spouse, children, next of kin, and any other person(s) inheriting personal or real property (i.e. legatees and devisees)
2. 2. Application to Probate Will– along with this completed application, you will need to provide the actual will (not a copy) and you will want to ensure that based on the court guidelines it meets all criteria of a valid will.

By filing the will with the court, it legitimizes the will. Meaning, once approved by the court, the will is officially considered the Last Will and Testament of the decedent, and the court will oversee distribution of assets to ensure the last wishes of the decedent are followed.

1. 3. Application for Authority to Administer Estate: on this form you will typically need to provide an overview of the assets that will need to go through probate court. This can be difficult to do because in some instances, you may not know of assets and/or you do not know how assets are titled and therefore do not know if they are estate assets (need to go through probate court) or non-estate assets (can be transferred outside of probate court) or exempt assets (assets that do not have transfer on death, joint account holders, or beneficiaries listed but do not need to go through probate court in order to be transferred).

If you find yourself in this situation, provide an educated estimate of the value of the assets to complete the form. It isn’t until later in the probate process where you need to provide a final and exact inventory of the estate assets. Once you receive approval from the court to administer the estate, you will have the authority to get the exact information on the value of assets and details on how the assets are titled (i.e. if there are beneficiaries or joint account holders listed on the titles). The court approval is often referred to as the “Letters of Administration” or simply, “the Letters”.

1. 4. Waivers and Notices: Waivers and notices are typically needed throughout the probate phases. In short, waivers are signatures and notices are letters that get sent.

The main purpose of the waivers and notices is to ensure that all the right people (all people listed on the heirs and beneficiaries form) are notified and/or are OK with what is being submitted to court. As long as these people have either signed the court documents or you have evidence that the notices were sent, the court will accept the forms you are submitting. An example waiver document that may be submitted is Waiver of Right to Administer (the estate).

If you are unable to get a waiver, you will need proof that you sent a copy of what was being submitted to court to the person(s). This is called a Certificate of Service of Notice. Example notices that may be needed if you are unable to obtain waivers include Notice of Probate of Will, Notice to Surviving Spouse of Elective rights and Notice and Citation of Hearing on Appointment of Fiduciary.

The fastest way to get through probate is to obtain waivers and then submit the applications to court.

1. 5. Additional Forms that may be used and/or filed during this phase include:
      1. Appointment of Appraiser
      2. Fiduciary’s Acceptance (Executor-Administrator)
      3. Fiduciary’s Bond
      4. Election of Surviving Spouse to Take Under (or Against) the will, etc. (only applicable if there is a surviving spouse)

Supporting Documentation that is typically required during this phase includes:

• • Certified Copy of the Death Certificate
  • Copy of Driver’s License or Government issued picture ID of the applicant (if filed without an attorney)
  • For any waivers (signatures) you weren’t able to get from heirs, beneficiaries and next of kin, you will need evidence that the notice was sent to them (via certified mail) (i.e. notices were sent). You’ll want to confirm with the court as to what type of evidence they require but it typically consists of certified or express mail return receipt requested.
  • Certified Marriage Abstract, if filing as the Surviving Spouse and spouse is not named in the Will or a Will does not exist;
  • The original will (you cannot bring in a copy)

• Notify Heirs and Creditors:

This phase typically involves notifying heirs/beneficiaries and creditors that the probate process is being initiated on behalf of the estate. As mentioned in the waivers and notices section above, notices are required throughout the probate process and the court will not accept the forms filed until they receive evidence that the notices were sent. Evidence that is typically accepted is  a signature or some type of certified mail receipt.

The notice is sent to people who have an interest in a decedent’s estate either because they are related to the decedent or because they were named as beneficiaries in the will. The initial notice is important because heirs and beneficiaries may not know that they were named in the will or that they may inherit assets because of their relation to the decedent. By giving them notice, it gives the heirs and beneficiaries a chance to review the will, understand what assets they may inherit, and possibly contest or assert other rights they may be entitled to based on local probate laws.

There is typically a form that the court provides or a certain format in which the notifications should be sent to the heirs and/or beneficiaries. Often the court will send the notifications via certified mail and charges you a fee for the service. Otherwise, you can receive signatures/waivers from the heirs and beneficiaries to reduce the time spent on sending notifications and providing evidence of notifications sent.

Estate Representatives are in most cases required to give notice to a decedent’s creditors in addition to notifying the heirs/ beneficiaries; however, the key difference is in how the notification is performed. Depending on local laws, the court may require the representative to post an ad in a local newspaper or multiple newspapers for a specified duration of time or the court will post the ad and charge you a fee for the service. Notice to creditors generally takes place after initial notices are sent to the heirs and beneficiaries of the estate.

Supporting Documentation

• • For any waivers (signatures) you weren’t able to get from heirs, beneficiaries and next of kin, you will need evidence that the notice was sent to them (via certified mail). You’ll want to confirm with the court as to what type of evidence they require but it typically consists of certified or express mail return receipt requested.
  • Notice of receipt of medicaid benefits to administrator of estate recovery program.

• Perform Inventory and Assess Solvency

Performing the inventory is often the most lengthy and cumbersome phase in the probate process and can take upward to three full months. The key activities include identifying what was owned, how the assets were titled/whether there were beneficiaries named, and accounting for debts or claims against the estate.

While you may have started the inventory when you filled out the Application to Administer the Estate, this form requires more details about the assets, such as location, account number, evidence for the estimated value (such as an appraiser certificate), and more.

During this phase you may need to leverage asset locater services and work with an attorney or review local probate laws on whether the asset identified is an estate asset, what value should be used (e.g. value as of date of death, fair market value, etc.), and whether the asset is exempt from the probate process. For more information on exempt assets, and determining which assets should be included or excluded, see this article: Probate Exempt and Non Probate Assets

Once the asset inventory is completed, you’ve collected the claims from all creditors, and either filed the personal income taxes of your loved one or come up with an estimate of the amount of taxes that may be owed, you will need to determine whether there are enough estate assets to cover debts. When there are more debts than assets, this is called an insolvent estate and will require additional forms and more complexity to the estate process. It is extremely important to not pay out or transfer any assets until you are confident that the estate is solvent OR based on a review of the debt class (more on this in the Pay Debts and Transfer Assets Step), you know that the debt you are paying, would be paid out first.

Example Supporting Documentation typically required to be filed along with the court applications includes:

• • Verification and Proof of value for all Assets to be Released such as:
    • Motor Vehicles, Mobile Homes, Watercrafts and/or Trailers (if applicable) • provide a copy of the title and a print-out of the vehicle’s value from the Internet (e.g. Kelly Blue Book), a recognized appraiser, or a motor vehicle dealer
    • Proof of value for Real Estate (if applicable) such as a copy of the tax value through the County Auditor’s office, if the real estate is appraised, the appraiser must be on the court’s approved appraisers list
    • Bank Account Statement etc.
  • Itemized statement of the decedent’s funeral and burial expenses: The statement must include the person who has paid or is obligated in writing to pay the expenses
  • Property Title/ Deed (if real estate needs to be transferred)

• Pay Debts and Sell and/or Transfer Assets:

If it does not appear the estate will be insolvent, you can begin to transfer assets to the beneficiaries named in the will or heirs based on state distribution laws. As a reminder, non-estate or exempt estate assets can be transferred at any time and do not require court approval. Additionally, you should pay off all debts, especially the personal income taxes owed by the deceased. Ideally, to avoid additional expenses or losses to the estate, depreciating assets (such as vehicles) and assets that require maintenance and upkeep (such as real estate and property), would get distributed first. Note that you do not need to wait until court paperwork is filed to transfer non-estate or exempt estate assets.

If the estate is insolvent, you will need to be very cautious about which debt is paid first. Each state, and in some cases each county, may have different rules determining the order in which debts are paid. This is called the debt class.

Example debt classes for the state of Ohio

• • Class 1 – Costs and Expenses of Administration
  • Class 2 – Funeral and Cemetery Expenses. This class provides up to $4,000 for funeral expenses and up to $3,000 for burial and cemetery expenses.
  • Class 3 – Family Allowance of $40,000.
  • Class 4 – Debts Entitled to a Preference Under the Laws of the United States.
  • Class 5 – Expenses of the Last Sickness of the Decedent.
  • Class 6 – Additional Funeral Expenses. If the total funeral expenses exceed the sum of $4,000 in class 2 above, then the funeral director can receive up to $2,000 more toward the decedent’s funeral bill in class 6.
  • Class 7 – Nursing Home Expenses.
  • Class 8 – Obligations to the State of Ohio.
  • Class 9 – Debts for Manual Labor.
  • Class 10 – Other Debts.

• File Taxes and Petition for Closure

This is the last phase in the probate process and involves you filing the final documents and applications to the court that provide the details of what you’ve done to close out the estate, the assets that are left to be distributed, debts left to be paid. The forms are typically provided by the court and basically are your formal request for the estate to be closed, thereby officially relieving you from duties as the estate representative.

Additional actions that are typically performed as part of closing out the estate include:

• • submit planned executor compensation to the court, prior to paying yourself
  • A second Form 56 needs to be filed with the IRS to notify them that you have completed your executor duties Usually this is done once you submit your final reports/applications with the probate court and receive approval of the estate closure.
  • Close the estate bank account

Example supporting documentation typically required to be filed along with the court applications includes:

• • Evidence that the assets were transferred to the heirs/beneficiaries
  • Evidence that debts were paid
  • Calculation details if paying yourself executor compensation