Do You Need a Probate Lawyer? 4 Questions to Ask

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Navigating the probate process can be tricky and time-consuming for any executor. As the person in charge of carrying out the last wishes of the recently deceased, you’re responsible for ensuring that all assets are properly calculated, financial liabilities are settled, and the remaining property is distributed appropriately to the estate’s beneficiaries. The probate process can last from a few months to a few years, and many executors turn to a probate lawyer for advice and guidance on the process.

Probate lawyers specialize in advising executors and beneficiaries on how to settle the affairs of an estate. They can walk executors through the probate process from start to finish, ensuring that all state probate laws where the deceased person (aka the decedent) lived and owned property are properly followed.

However, they come at a cost. Many probate attorneys charge by the hour and, depending on the length of a probate, could end up costing an estate thousands of dollars. No state requires an executor to have a probate attorney. But if you’re thinking of hiring one, consider these questions:

1. What’s the size of the estate?

Almost all states let smaller estates use an easier form of probate dubbed simple or “summary” probate, which saves both time and money. But each state has its own definition of what qualifies as small. In California, for instance, simple probate is allowed if the estate doesn’t exceed $150,000.  

2. Is there enough money in the estate to cover the deceased person’s debts?

In a best case scenario, a decedent will have enough assets to offset the legitimate debts of the estate, with substantial remainder for the estate’s beneficiaries. However, not every estate ends in the black.

If, after taking inventory of the property and other assets, it seems there won’t be enough money to cover the decedent’s debts and taxes, you’ll want to get advice before you pay out to any creditors. State laws dictate which creditors take priority and you’ll likely need an attorney to help you navigate your legal obligations and how to distribute out the money.

3. Can the deceased person’s assets be transferred outside of probate?

Depending on the planning a person did before their death, it may be possible to transfer assets outside of probate court. Consider if estate assets are held in a living trust, joint ownership, payable-upon-death ownership, or as community property with rights of survivorship (a type of joint ownership in which the surviving owner automatically owns the asset in full upon the partner’s death).

Probate is also unnecessary for any assets that pass through terms of a contract, like a retirement account or life insurance policies, which are transferred to a designated beneficiary upon the person’s death.

If most or all of the decedent’s assets fall into these categories, probate is unnecessary, making hiring a probate attorney equally unnecessary.

4. Are the family members getting along?

Family dynamics can add both stress and uncertainty to the process of resolving an estate. Most wills tend to go uncontested. But in the rare instance that someone does raise legal objections, this can send the probate process into a tailspin. If a family member challenges a will or if siblings bicker about the division of parent’s assets, the court may need to intervene to settle the issue. If it comes to court battles, you’ll likely want to have an experienced probate attorney at your side.

If you decide you need a probate lawyer, you can browse estate attorneys near you using our service finder:

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