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Do Executors Need an Attorney for Probate?

Kenny Liebowitz Atticus App
Kenny Liebowitz

Let’s jump straight to the question on everyone’s mind… If you are an executor, can you navigate the probate process without having to hire a probate lawyer? 

Yes, absolutely.

You can file the necessary forms with the probate court, handle the retitling and distribution of assets, and complete the smaller tasks to close the estate on your own. Yet, there are also times when it is useful, or perhaps even necessary, to work with a probate lawyer to settle an estate.

Do I need a Probate Attorney for Probate?

A few quick rules of thumb to consider before assessing anything else are:

  • How complicated is the estate to understand or manage?
  • Did the decedent leave a will, trust or other verified estate plan? 
  • Are the relationships among beneficiaries and surviving family members tense or stressful? 
  • Are you aware of the qualifications & generally prepared for the requirements & type of work required of an executor?

Often, the decision of navigating probate alone or engaging a probate attorney depends on personal preference and ability. Other times, engaging a qualified attorney might be necessary or required due to state laws or family preference.

Keep in mind hiring a Probate attorney doesn’t have to be an all-or-nothing decision. In fact, it’s quite common for executors to perform a certain portion of the work, and also hire out a qualified Trust & Estates attorney to perform other tasks. 

Here are some of the most common questions to consider when determining whether to work with a probate lawyer: 

How many assets did the Decedent own, and what was their collective value?

Most states have a simplified probate process for Decedent’s who did not own very much.

These procedures usually involve fewer forms and filings with the probate court and can be accomplished much quicker than the traditional probate process. 

What kind of assets did the Decedent own? 

Many types of assets are inherited outside of the probate process, which can make administering an estate a bit simpler.

Examples of these types of assets include:

  • Assets held in joint tenancy, survivorship community property, or tenancy by the entirety
  • assets held in a living trust
  • assets with a named beneficiary (such as retirement accounts or life insurance policies) 

Did the Decedent leave a Will, Trust, or no estate plan? 

If the Decedent left a Will specifying who should inherit the estate, then it is rare that it will be contested. However, if the Decedent did not leave an estate plan, infighting between family members to inherit the estate’s assets may be more likely.

If that’s the case, a probate lawyer can help.

Are family members fighting over the estate? 

Few families are immune from discord and arguments can come to a head after a loved one passes away. This may involve family members launching accusations against one another, quarreling for specific assets, or otherwise creating problems.

If you are experiencing or foresee any of these, it is a good idea to speak with a probate lawyer.

Did the Decedent own real estate in multiple states?

A second probate administration is necessary when the Decedent owned real estate in another state. This is called “ancillary probate” and takes place in the state that was not the Decedent’s primary residence. A second probate proceeding obviously complicates matters and you could benefit from the help of a probate lawyer in the ancillary probate state.

Did the Decedent own a business or commercial real estate?

Estates are easier to handle when the Decedent owned common assets like a personal home, bank or brokerage accounts, or a car. In situations when the Decedent owned a business, commercial real estate, or other assets that require ongoing maintenance, it can be helpful to speak with a lawyer and other experts to determine how to manage, appraise, and sell those assets.

Is there enough money in the estate to pay debts and family allowances? 

The personal representative of an estate is responsible for paying the Decedent’s outstanding debts (e.g., the Decedent’s final income taxes, medical costs of a last illness, and funeral expenses). Most states also allow the Decedent’s surviving spouse and dependents to collect a specific allowance from the estate during its administration.

If it is likely that the estate will not have enough money to pay all debts and allowances, seek legal advice. The priority of creditors and types of allowances differ from state-to-state.

Will the estate need to pay state or federal estate taxes?

The vast majority of estates do not owe federal estate tax. That being said, nearly 20 states impose a state estate tax, usually on estates with a value of $1 million or more.

If the estate ends up owing estate taxes, you will most likely need legal and tax advice.

Summary

Navigating the probate process is not always an easy task. And it’s hardly a straight line. 

Whether you end up deciding to hire a probate lawyer or not, DIY Probate platforms like Atticus can be tremendously helpful for guiding step-by-step instruction, access to necessary probate forms & notices, and built-in tools to help inventory assets & share progress with co-executors, beneficiaries and any assisting advisors... including probate attorneys.

What did we miss? What’s been your experience or preference?

Let us know below if you have other helpful considerations or tips to pass along for other executors navigating the probate process.

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