Probate without an attorney?

Tasking a matter through probate court without an attorney just got harder. I don’t think it was ever easy. If you ask even the most experienced probate attorney, they probably have a matter that didn’t make it through the probate court without delays.

I’ve been at the filing counter when someone asks about what is required to transfer the property of a deceased owner. They get handed a packet of most of the possible forms that could be used in a probate administration. I write most because there is not a form for all situations. Sometimes attorneys need to create a document of their own. The probate court staff is prohibited from giving legal advice. One of the suggestions in the new probate court clerk’s guide to avoid the clerk giving legal advice is to hand out all of the blank probate forms in bulk. This means that someone who is trying to take something through probate on their own is going to have to (1) choose which forms to use and (2) make sure that they properly fill them out.  They also must submit to the court an Acknowledgement that they will follow all of the applicable rules in the administration of the estate. These rules include state and federal law, court rules, the rules of superintendence, and any orders that a probate magistrate may issue.  Administrators and executors that are going without an attorney in an estate administration are held to the same standard of knowledge as an experienced probate attorney.  Additionally, the probate court Acknowledgement states that the court may require that a self-represented person hire an attorney to complete the estate administration if the executor runs afoul of any of the requires rules.

In many situations, a probate bond is required to administer the estate of deceased person. This means that the executor or administrator must purchase an insurance policy (bond) so that if they mismanage any of the money during the estate administration, the other beneficiaries can get reimbursed from the bond company. Often one of the conditions of an insurance company issuing a bond is that the client will be represented by an attorney throughout the probate process.

For someone who thinks that probate is just about filling out a lot of forms, I would caution them that it might not be that simple.