Let’s jump straight in. If you are an executor, can you navigate the probate process without having to hire a probate lawyer?
Well, that depends on your state.
You don’t have to get one unless your state requires it or requires it in effect — meaning that even though the law may not explicitly say you have to, the forms you need to prepare and file require a lawyer.
As of writing this, the states that require you to have a probate lawyer, or at least the ones that you will likely need one in, include:
- Hawaii
- Missouri for estates over $40k
- North Carolina if you don’t live in the same state as the deceased
- North Dakota if going through formal probate
- Texas except in special situations, e.g. the executor is also the sole beneficiary of the testate estate and there are no debts against the estate other than those secured by liens against real estate.
- Arizona - Can get around a lawyer if you complete a certification and present the Certificate of Completion to the Probate Court.
Keep in mind, this list can change depending on what laws are passed and can differ by county as well. For example, Marion County in Indiana requires personal representatives to be represented by an attorney.
But… even if you don’t need one, whether or not you should get a lawyer is another thing altogether.
Should Executors Hire a Probate Lawyer or Attorney?
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, as mentioned, 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.
If you live in a state that doesn't require a lawyer and you can bypass most or all of probate, hiring a lawyer might make less sense.
Read more: How to Avoid Probate
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 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 settle and mitigate disputes.
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, known as ancillary probate, is necessary when the decedent owned real estate in another state. Ancillary probate 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.
Bottom line on hiring an attorney for probate
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.
We also took a bunch of time to gather all of our favorite resources and tools for people going through probate, and you can see that list below:
Free Probate Help: 52 Tools and Resources For Every Estate and Budget
