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Common Questions about Probate Answered by a Lawyer

February 26, 2020

Do I need a probate lawyer?

With a few exceptions, people are generally allowed to represent themselves in probate court.  However, in litigated (or “contested”) cases—when there is a dispute between the parties—it is usually advisable to hire an attorney.  As discussed below, even in an uncontested probate, it is often better to hire a lawyer.

“Probate lawyer” is a broad term that can have many different meanings.  In its strictest sense, it means a lawyer who assists a client in probating a will—what lawyers might call a simple probate.  In a simple probate there are no disputed issues, and the proceeding is really about satisfying various technical requirements, for example that the assets in the estate have been properly inventoried and appraised, that taxes have been paid, and all interested persons and various public entities have been given notice of the probate proceeding.

Probate Attorneys

According to the more common and broader sense, a “probate lawyer” is a lawyer who regularly appears in probate court and represents clients in all manner of proceedings over which the probate court has jurisdiction.  This runs the gamut from guardianship matters for minors, conservatorships for incapacitated adults, matters involving powers of attorneys and health care directives, and all manner of disputes involving wills and trusts and the actions of trustees.  In these cases other than simple probates, there is often a lot at stake, and it is usually best to hire an attorney who specializes in probate matters.

Can you do a probate without a lawyer?

A layman is legally permitted to represent himself as executor in a probate.  So, strictly speaking, you can do a probate without a lawyer. A layman who represents himself is said to represent himself “pro per,” and it is not uncommon to encounter pro pers representing themselves in probate court.

Although it is permitted, there are some drawbacks to representing yourself.  The obvious one is that you probably don’t know what you are doing, so you will probably make some mistakes that a probate lawyer would not make.  These mistakes are rarely fatal, and many judges show enormous patience towards pro pers, and some are willing to offer gentle guidance.

Common questions about probate 

Most courts publish what are called “tentative rulings” a few weeks or days before probate court hearings.  These tentative rulings usually identify the mistakes or deficiencies in the probate pleadings. An industrious pro per can sometimes correct these pleadings before the hearing, and even if they are not corrected before the hearing, the judge will normally give you a continuance of several weeks to fix your probate pleadings.

If you decide to represent yourself in a probate proceeding, it’s advisable to visit the county law library and ask the law librarian to direct you to the books on how to handle a probate.  There are some good books on the subject that will walk you through a probate step-by-step. Still, the language and terms themselves can be very confusing, and only the most diligent and determined laymen are likely to make it through the entire probate process without significant difficulty.

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