The probate process usually does two things: it checks the validity of a will, and makes sure the instructions in the will are followed correctly. The executor of the estate is usually involved in both processes. While you can file a will for probate and serve as executor without being an attorney, you may find an attorney's advice helpful, especially if an estate is large or there's a will contest involved.
The first step in probate is to open the probate estate. Usually, this step begins when the executor or a family member files the will with the probate court, along with a petition asking the court to open the estate for probate. Courts often have forms you can use to petition the court. Once the probate estate is opened, the executor may ask the court to give her "letters testamentary," the official court document that allows her to start taking care of the estate's business. These documents may all be filed without an attorney's help. The probate court may be able to give you forms and instructions, but is not allowed to offer legal advice in any state.
Most of the responsibilities of an executor can be performed by someone who is not a lawyer or without consulting a lawyer for professional advice. Such tasks include making an inventory of the estate, paying the deceased person's final medical, funeral and burial bills, and sending notices to the deceased person's creditors and beneficiaries listed in the will, letting them know that probate is open. Some state probate courts even provide guides for executors to help ensure they take care of all the necessary probate tasks. For instance, Kentucky's probate courts offer an online Guide to Basic Kentucky Probate Procedures specifically designed for non-lawyers.
Once you notify the estate's beneficiaries that probate has begun, the beneficiaries have a certain amount of time in which to file a will contest if they suspect the will was fraudulently created or is otherwise invalid. The amount of time the beneficiaries have varies by state. If a will contest is filed, the executor is responsible for defending the will in court. Although all state probate courts allow a non-lawyer executor to defend the will himself, an attorney's help can be invaluable when facing a will contest. In most cases, the attorney's fees can be paid by the estate instead of out of the executor's own pocket.
When to Call an Attorney
Most probate processes are pretty straightforward. However, you may wish to consult an attorney in a number of instances: if a will contest is filed, if the probate court rejects the will as invalid, if a beneficiary listed in the will has died and no alternative beneficiary is named, or if the will attempts to give away property the estate no longer owns. Also, if the estate's debts are larger than its assets, and attorney's advice can help you manage creditors and talk to the beneficiaries.