Do I need an Attorney for Probate? We often field a question from clients after a loved one dies. As is the answer to most legal questions, it depends.
Having an estate planning attorney manage the probate process can alleviate a great deal of stress for the family, says the recent article “Reasons to hire a lawyer for probate” from The Mercury.
In part, it depends on how much is assets need the probate court to be delivered. Are the assets diverted from probate by title or contractual beneficiaries designations? If the assets that need to go through probate are under $50,000 (or $100,000 if all assets are going to the surviving spouse) then you can probably handle the court case without an attorney.
It’s against my religion to say so.
The small estate process is streamlined and simplified for this purpose.
If the value of assets that need to be processed with letters of administration from probate court exceeds $50,000, it will not be a “Regular Estate,” and having an attorney assist in the process can really help.
For one thing, the attorney will know what your state requires to execute the will. You may need to pay a state inheritance tax, or you may have to file certain documents specific to your state. Even if the surviving spouse is the only beneficiary and all assets are either jointly titled or are distributed through beneficiary designations, there are other details you may miss.
A surviving spouse will certainly appreciate not having to undertake a mountain of paperwork or electronic forms on their own, especially if no adult children live nearby to help. Which beneficiary form needs to be completed, and what will financial institutions need to change accounts to the proper ownership? It can be daunting, especially during mourning.
Depending upon the state, there may be exemptions, discounts, and deductions from the estate. A layperson likely does not know if their state deducts the attorney’s fees and/or the executor’s fees. Even attorneys who do not practice estate law do not always know about these potential benefits.
An estate planning attorney will also know how long the probate process will take. If the surviving spouse is the executor and cannot attend probate court, some cases accept a remote process. There are also COVID-specific procedures in some states, which may catch a layperson unaware.
If there are family disputes between beneficiaries regarding distribution, you need an attorney for probate. A settlement agreement may need to be created that conforms to the state’s law. If it is not handled correctly, the contract could be ruled invalid if challenged in court.
What if the family home is to be sold? Sometimes executors working without an attorney do not realize the requirements from title insurance companies regarding the sale of a property where one of the parties has passed. Failing to make sure these requirements are met could delay the settlement of the estate and put the property sale in jeopardy.
If there are health or creditor issues, or property disputes, you need an attorney for probate. An estate planning attorney is invaluable in protecting the surviving spouse and/or executor. The estate may be left with substantial medical bills, Medicaid claims, or related costs in many cases. Executors may not know their rights or how to defend the estate. A knowledgeable estate planning attorney will.
Reference: The Mercury (Feb. 8, 2022) “Reasons to hire a lawyer for probate”