When to Hire a Probate Lawyer or Attorney?

There are times in your life when you know you need to hire an attorney. Purchasing a home, being charged with a crime, or being served with a lawsuit are examples of situations when you need the expertise of an attorney to protect your rights. While you may have the right to represent yourself in certain situations, it is not always in your best interest to “go it alone.” Sometimes hiring an experienced attorney is the best step you can take to protect yourself.

What is Probate?

In order to understand when you need to hire a probate lawyer, it helps to know a little bit more about probate. Probate is the legal process of administering the estate of a deceased person. It involves filing the will and proving that it is the last valid will that the decedent signed prior to his or her death. An inventory and appraisement of the decedent’s property must be prepared and filed with the court, his or her debts must be paid, heirs must be identified, and property must be distributed according to the will. The executor or personal representative named in the will has the responsibility of completing and filing the paperwork necessary to administer the estate and distribute the assets.

The complexity of the probate process depends on the decedent’s estate. In the case of a simple estate, the personal representative or executor may not need to hire a probate attorney. In some circumstances, the administrator may need the assistance of a probate attorney to advise the administrator about probate laws or assist the administrator in preparing and filing the necessary documents to probate the decedent’s estate.

Circumstances Where a Probate Lawyer May be Needed

Each estate is different. Some estates are simple with very few assets and one or two heirs. In those cases, the administrator can usually complete the probate forms with the assistance of the probate court staff. The need for a probate lawyer in a small, simple estate is a matter of preference. Some administrators are uncomfortable with the process and prefer to have an attorney prepare the documents so the administrator can simply sign the forms. In other cases, administrators can become overwhelmed by the process because the estate is large or has an element that makes the estate more complex than the typical probate estate.

Examples of situations where you want to consider hiring a probate lawyer include:

Business Interests

If you are the administrator of a probate estate that contains a business, you may need to hire a probate attorney. Administering an estate that consists of the “typical” assets that most people own (i.e. a home, car, and personal items) is much easier than administering an estate that involves an ongoing business interest. If the decedent owned a business at the time of his or her death, you will likely need to hire several professionals to assist with the probate of the estate including a probate lawyer, accountant, appraiser, and business manager. The type of business in question and the fact that the business will continue to operate can also add to the complexity of the estate.

Heirs Contesting the Will

Even a simple estate can quickly turn complex if the heirs contest the terms of the will. When family members argue over the proposed distribution of assets or other terms contained in the will, the administrator may need an attorney to represent the estate. If you believe that the heirs will object to how you administer the estate, it is in your best interest to hire a probate attorney as soon as possible.

Probate Litigation

  • Contesting the validity of the will
  • Disputes over the distribution of property
  • Breach of fiduciary duties
  • Challenging the administrator’s accounting
  • Disputed creditors’ claims
  • Removing an administrator
  • Obtaining guardianship or conservatorship for minors or incapacitated heirs
  • Challenging the interpretation of the terms of the will
  • Challenging the validity of heirs in an intestate case
  • Disputes over property transfers
  • Disputes over trusts established through the will

Income Tax, Inheritance Tax, and Debts

In a small estate, tax issues and debts may not be a problem for the administrator; however, in a large estate, these issues can be quite complicated. If the estate cannot pay the taxes and debts, the administrator should seek the advice of a probate attorney before paying any of the debts. Some debts have priority; therefore, it is extremely important to have assistance in determining what debts to pay first. Furthermore, the estate may have valid objections to some of the claims that need to be settled prior to paying any debts of the debts.

Who Pays for a Probate Attorney?

If you hire a probate lawyer to assist you with the administration of an estate, you do not pay the attorney’s fees out of your own pocket. The fees for a probate attorney are paid by the estate before any assets are distributed to the heirs. The attorney’s fees for a probate attorney vary depending on the complexity of the estate and the services provided by the probate attorney.

If you have any questions about administering an estate, it is always best to seek the advice of an experienced probate attorney. Your decisions as the administrator can be challenged and, in some cases, you can be sued by the heirs for your actions as administrator.