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Do I Need a Probate Lawyer?

By Kecia Van't Hof

February 2020

When a loved one dies, the division of his or her assets might be the last thing on your mind. However, the division of assets is necessary to discuss. Probate can be a complicated process. So before you make the decision on whether you will need an attorney to assist you in the probate process, ask yourself the following questions: “Can the estate assets be transferred outside of probate?” “Is the estate small and/or does it contain simple household items?” “Are members of the family getting along?” and “Is there enough money in the estate to pay debt and taxes?” Now let’s take a look at each question in more depth.

The first question to consider is whether the estate assets can be transferred outside of probate. If the assets can be transferred outside of probate, then a probate attorney may be unnecessary. If assets are able to be transferred outside of probate, it is typically due to the decedent taking the steps necessary beforehand to avoid probate. This means that they have set up trusts, beneficiaries, and/or have assets that are held in joint tenancy or survivorship with others. If these actions have taken place before the death of the decedent, then a probate attorney is more likely not necessary. However, if none of these things have taken place, meaning the assets are unable to transfer without probate, then you should consider hiring a probate attorney.

The next question to ask yourself is if the estate is small. Small does not necessarily mean that assets themselves are small in size, but rather that the estate contains simple household items, such as vehicles, homes, bank accounts, and household goods, then it may be considered “small.” When an estate contains other items, such as commercial real estate and business, then the probate process can become a lot more complicated. If the estate is small, most states have a simple small estate procedure which could result in avoiding in-court proceedings. If the estate is small and your state has this type of procedure, then an attorney may not be necessary. If you would have to go to court because the estate is large and requires an in-court process, it would be wise to consult with an attorney. A probate attorney’s job is to complete the probate process, and they have experience with in-court proceedings. So, if the estate does not qualify for a simple procedure and would need a more complex skill set, you should consider a probate attorney to help you through the process.

Another thing to consider is the family members’ relationships; are they getting along? If they are getting along, the probate process will generally go much smoother than if they are not getting along. If family members are not getting along, it would be wise to consider hiring a probate attorney to assist in the process. When family members are in conflict with one another during, or after the death of a decedent, this could result in a will contest. Will contests should be handled by an attorney due to their complicated nature and the emotions involved between the family members. Therefore, if family members are not getting along, be sure to contact an attorney as soon as possible before things get too complicated.

Finally, you should ask yourself if the estate has enough money in it to pay the debts and taxes of the decedent. If the estate contains enough money to pay all the debts and taxes, if any, owed on the estate, then the need for a probate attorney is very small (in less the matters discussed above are relevant). If the estate does not contain enough money, then a probate attorney will be able to help. Some debts must be paid before others and a probate attorney will be able to help navigate which debts must be paid first. Further, the taxing process can be very complicated, so if the estate owes a federal or state tax, consulting with a probate attorney, as well as a CPA, will be in your best interest in order to ensure that everything is done and filled out properly.

If you have considered all of these questions thoroughly, you will be able to decide whether or not you will need a probate attorney. It is also wise to consider the type of person you are – do you learn easily, what type of occupation do you have, have you been exposed to this area of expertise beforehand, etc. – when deciding whether to take on probate alone or whether you should get help. The death of a loved one is never an easy time, but these questions are important to consider moving forward.

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