After someone dies, the individual’s estate sometimes gets settled by going through probate, a legal process. A probate attorney can make the stressful and confusing process easier for family members and for the person in the role of executor, but hiring an attorney isn’t always necessary.
Reasons to Hire a Probate Attorney
Sometimes a person dies without a will or with a will that wasn’t drafted by an attorney. If a family member believes all or part of the will isn’t legally valid, it can lead to conflict. A probate attorney can help sort things out.
The person selected to serve as executor may have little or no legal knowledge. A probate attorney can provide the executor with professional guidance.
Simmering family tensions often reach a boiling point after someone dies. A probate attorney can remain emotionally detached, provide legal guidance, help everyone stay calm and minimize conflict.
If someone makes a legal claim, family members without legal training may not know if that claim is valid or how to respond to it. A probate attorney can evaluate a claim, discuss whether it has legal merit and give advice on how to address it.
Heirs may have questions about their inheritances or may receive inheritances that don’t meet their expectations. If heirs feel that they have been treated unfairly, that can lead to conflicts with other relatives. A probate attorney can help the parties stay civil and work things out.
When You May Not Need a Probate Attorney
If the deceased person only owned common assets, such as a house, a car and bank accounts, and had a life insurance policy and a retirement account with named beneficiaries, probate won’t be necessary. The estate won’t have to go through probate if the deceased person’s assets were held in joint tenancy, survivorship community property, tenancy by the entirety or a living trust. If the deceased owned a business or commercial real estate, however, you should consult an attorney.
Even if the estate has to go through probate, it may not be necessary to get an attorney involved. Some states have adopted the Uniform Probate Code, a set of laws designed to simplify the probate process. Other states haven’t adopted the UPC, but they have straightforward procedures. Check the laws in the deceased person’s state.
If the estate has enough money to pay off all the deceased person’s debts, the executor can take care of it. If there isn’t enough money to go around, a probate attorney can explain which debtors have priority under state law.
The vast majority of estates aren’t subject to federal estate tax, but many states have their own estate taxes. A probate attorney can answer tax-related questions.
Consult an Attorney If Necessary
Probate can be a complicated process, or it can be relatively simple. A probate attorney can provide valuable assistance, but hiring an attorney isn’t always required.