1. Do I Need an Attorney For a Probate Court Proceeding? Parties involved in a proceeding do not necessarily require a lawyer to represent them. Probate court forms are designed to be "user-friendly,'' and the probate clerk or judge may offer limited assistance to people completing required forms and reports. In the case of complex estates or complicated family matters, however, an attorney should be retained, as explained below.
Decedent's Estates The executor or administrator of an estate should obtain legal assistance if:
extensive help is required;
the estate includes substantial or unusual assets, such as a closely held business or a copyright;
the estate is large enough to involve the filing of a Federal Estate Tax Return;
there are problems involving taxation;
the executor or administrator has substantial questions concerning the law or fiduciary responsibilities; or,
the will or any matter in the estate is contested.
Family Matters In the following matters, an attorney is required for the respondent (the person who is the subject of the proceeding):
guardianship, placement, and sterilization of persons with intellectual disability;
commitment of adults and children with psychiatric disabilities;
temporary custody or removal of guardianship for a minor child; and,
termination of parental rights [legal representation is required for both the minor child and the respondent parent(s).]
What can I expect? The probate courts have often been called "the people's courts" because they offer simple, direct access to legal proceedings. Convenience and efficiency are the hallmarks of the probate court. The majority of uncontested matters are heard within four weeks of the time a person goes downtown or drives to the next town to file the application. In most cases, the probate courtroom will be a conference room in the probate court offices. The atmosphere at the hearing is informal; the judge does not preside from a bench or wear a black robe.