Do I Need a Probate Attorney?

A recent Iowa Appellate Court decision brings this question to the forefront for probate attorneys and those who hire them.

Do you have to hire an attorney for Probate?

The short answer is no. And it is the same answer for every legal area; a person can represent themselves in a court case. This is called pro se representation. While you can represent yourself in probate court, we don’t recommend it. Probate has numerous statutory requirements that have to be followed. Iowa Code Section 633 for probate requires the navigation of 145 pages. Estates that have less than $200,000 follow Iowa Code Section 635, however, there are many parts of this section that cross-reference the requirements in 633.

We are biased by saying you need an attorney for probate, however, we have firsthand experience of the challenges of probate administration. There are requirements to cut off creditors, give notice to heirs-at-law even if they are excluded in the Will, tax filing requirements, and the correct transfer of assets.

In a recent Iowa Court of Appeal Decision, (In the Matter of the Estate of Barbara Jean White, No. 23-1009 filed August 21, 2024) a pro se petitioner filed a petition for small probate administration to open his mother’s estate. His petition to open a probate estate under Section 635 was twice denied for failure to file required documents. Two of those requirements are listed in Code Section 633; this is where the knowledge of both code sections is essential by the petitioner. The requirements that were not met were to file an oath and a designation of attorney.

The issue of whether an attorney is required to probate an estate was not preserved for appeal. Understanding the importance of addressing whether a person can represent themselves in probate, a special concurrence to the opinion was filed. Judge Langholz stated that is was likely possible for a petitioner to do Probate without an attorney, but with the following caveat:

“I do not intend to give [petitioners] false hope. Proceeding in probate - even for a small estate - without an attorney is not easy. Under our adversarial system, courts and court official cannot give [] self-represented parties legal advice to help navigate the process.”

As an outsider looking in, it is possible that Probate is not required to transfer the assets in the Estate of Barbara Jean White. The opinion stated that the estate had $10,000 in assets. An estate that does not have real estate or if real estate transfers under joint tenants with full rights of survivorship and the gross value of the estate is less than $50,000 the assets can be distributed using a Small Estate Affidavit. The court cannot intervene to state whether assets require probate to transfer. There are cases that are filed and administered through the probate process that do not need court supervision to transfer the assets; this results in unnecessary time and expense. One of our most popular blogs is called “When is Probate Necessary in Iowa”. Probate is only necessary for the transfer of certain assets.

What if I can’t afford an attorney?

At Hope Wood JD, we know that Estates are not one-size-fits-all, and we keep that in mind with our pricing. We have a Flat Fee model, so you know what it’s going to cost before you hire us. Our pricing considers the estate's complexity, the type and number of assets, the number of heirs and creditors, and access to legal counsel for those who would not otherwise be able to afford it.

What does Hope Wood JD bring to the table?

We exclusively practice in Probate and Estate Planning, so we have the experience and the problem-solving skills to resolve an estate as painlessly as possible.

Can a Small Estate Affidavit be used?

This depends on the value and types of assets that need to be transferred. When we review your probate intake, we recommend the use of a small estate affidavit if it is a legal option.

Was the Will validly executed and/ or if something is missing, can it be remedied?

Was the Will validly executed? If something is missing, can it be remedied? There are several requirements in a Will execution, some that can be remedied after the fact (Affidavit of subscribing witness), and others that cannot be remedied. We wrote an article called “Can I Write My Own Will?” to discuss the requirements of a valid Will.

What do I do as an Executor or Administrator of an Estate?

In addition to a Probate consultation to explain the Probate process, we also provide an Executor's Handbook to the estate executor. The Executor's Handbook goes through the process in more detail and answers some of the most common questions that come up during the probate process.

Can I talk to my attorney?

Yes! All of our probate clients are provided with a link where they can schedule a call or Zoom meeting directly on their attorney’s calendar. Our office schedules all client calls so we can give each case the focus it deserves and prepare adequately for every call. Email is also a great way to communicate with Michelle or Hope!

Probate isn’t fun, and going about it by yourself is definitely not easy.
Our goal is to make probate as painless as possible so the decedent’s loved ones can focus on their memory and legacy instead of a court proceeding.