Will You Need to Hire a Probate Lawyer?
The probate process can be a complicated prospect, with many steps that can involve everything from identifying assets to filling out legal forms and making appearances in probate court. Your first inclination, and indeed the first piece of advice given to executors, is usually to hire a lawyer. Having an experienced probate lawyer to provide legal advice and guide you through the process can be quite helpful, but it isn’t always necessary.
Fortunately, if the estate you’re handling is small and straightforward without any unusual assets you’ll probably be able to handle things on your own. In order to help determine whether you actually need to hire a lawyer, you’ll want to consider several factors.
Whether the assets can be transferred outside of probate
If the decedent did enough estate planning to help avoid probate court, you can likely proceed without a lawyer. Assets that are held in joint tenancy or considered survivorship community property or involve tenancy by the entirety can be easily transferred. Any assets held in a living trust or for which the decedent named a specific beneficiary can also bypass probate.
If the estate qualifies for “small estate” procedures
Many states have what they call “small estate” procedures, which involve a streamlined probate process that takes place completely out of court. In these cases, all that is necessary is presenting a simple sworn statement to the institution or person holding the asset. Each state has its own specific rules about which estates can use these simplified “small estate” procedures.
If family members are getting along well
All estates require a period of time to allow for contesting of a will. If there is friction among family members that may lead to the contesting of the will, then it will probably be in your best interest to consult a lawyer so that you can avoid a potentially costly court battle.
How complicated your state’s probate process is
The specific probate process can vary from one state to another, so you should determine exactly what is required in your state before deciding whether to hire a lawyer. Some states have adopted something called the Uniform Probate Code, or UPC, which are a set of laws that allow probates to be conducted with minimal involvement of the courts. In these cases, probate should be straightforward enough that hiring a lawyer won’t be necessary.
If the estate only contains common assets
The complexity of the probate process will depend heavily on the type of assets contained in the estate. Common assets such as a house, brokerage or bank accounts, vehicles and household goods can be easily distributed. Estates that include businesses, commercial real estate or any other asset that requires special ongoing handling can be me much more complicated and handling them will require the advice of a professional.
If there is enough money to pay debts
Every estate will have some legitimate debts such as final income taxes, expenses incurred during the final illness and funeral costs. If there is enough money to cover these debts with some left over for the beneficiaries listed in the will then you’ll probably be able to handle it yourself. If there isn’t enough money to pay off the debts of the estate then you should consult with a lawyer before you pay any bills, since a lawyer will be aware of the state laws that may govern which creditors get priority.
Whether there are state or federal estate taxes owed
Filing taxes is always daunting and that is just as true for estates as it is for individuals. Fortunately, most estates don’t actually owe federal estate tax but some may owe a separate state tax, particularly if they are valued at $1 million or more. If the estate you’re handling is large enough to file an estate tax return, you’ll almost certainly want some expert legal advice to ensure everything is handled properly.
What Will The Probate Lawyer Do?
If you do decide to hire a probate lawyer, you’ll want to know exactly what the lawyer will do for you. There are a lot of small tasks involved in the probate process, including making phone calls and gathering documents, and if you’re paying your lawyer by the hour you’ll want to handle much of it yourself to keep your expenses down.
The real benefit of a lawyer is being able to get professional advice and help to navigate some of the more complex steps, including dealing with the probate court and filing estate taxes.
You’ll find that most lawyers are pretty flexible about what they’ll insist on handling so don’t be afraid to ask questions and put everything in writing so there’s no confusion about who is handling tasks such as ordering death certificates, filing the will with the local probate court, getting property appraisals and filing the deceased’s final income tax return.
In order to expedite matters and save yourself money, make a list of questions and ask them all during a single phone call or visit. Remember, the goal of a probate lawyer is to make the process easier on you, so make sure you’re getting exactly the help you need.If you have any questions about the probate process, give the Lawyer in Blue Jeans Group a call or fill out the contact form. Our probate attorneys for San Diego probate court will be happy to help you navigate the process.