Probate—the court process by which estates get settled—can be lengthy and filled with complex terminology. It’s not surprising that many families and estate executors turn to lawyers to handle any probate issues that come up during this complicated process.
The truth is, an experienced probate expert – generally someone with a paralegal or accounting background – can handle the vast majority of probate issues, and often the entire process.
This is important to know because a probate expert usually charges less than half the fee of an attorney, who may bill upwards of $250 or even $400 an hour. Families can save a lot of money by only bringing in an attorney on an as-needed basis.
So, when do you actually need an attorney for probate issues? Remember the Three Cs for the most common reasons:
Sometimes legal documents such as deeds or disclaimers must be prepared during probate in order to fulfill the last wishes of the deceased individual, or to help the heirs properly arrange their inheritance.
For example, say a brother and sister both inherit a family-owned restaurant from their parents, but the sister wants to sell her share to her brother. A lawyer would draft the sales agreement between the siblings, and any other contracts needed to ensure the restaurant continues to be properly managed.
When there is a business involved, the assets are usually complex enough to benefit from an attorney’s guidance. The attorney can ensure that the right legal documents are in place for transferring or dissolving ownership. However, if the heirs simply own real estate together—and aren’t planning any big changes to that ownership—hiring a lawyer may be unnecessary.
Unfortunately, after a death, probate issues can arise that create tension or even nasty disputes among the heirs. We’ve seen estate proceedings tear families apart over arguments and bad feelings. A lawyer can help mitigate these situations and preserve family harmony.
For example, if anybody thinks the will should be deemed invalid—for whatever reason—an attorney should be called in to represent the estate. Or say the deceased individual had remarried and had more children with their second spouse. The children from the first marriage may feel they did not receive their fair share of the estate. Both parties in that situation may need lawyers to represent them and help settle the dispute.
For these emotional probate issues, it’s sometimes better to bring in a lawyer sooner rather than later. If one heir starts to become argumentative or accusatory, a lawyer may be able to help the parties involved resolve any conflicts early and avoid a full-blown court battle.
If you need to go before a judge during the estate proceedings, you’ll probably need a lawyer. For example, sometimes wills or other estate documents are written unclearly and the heirs need the court to interpret them. They will want a lawyer in the courtroom to present the will or estate documents for interpretation.
If somebody challenges the will, it may lead to litigation—and, again, all parties involved will probably want a lawyer to represent them in court.
When an estate is insolvent—meaning its assets are insufficient for paying off its debt, taxes and administrative expenses—creditors are likely to file claims or even start badgering the executor for money. It’s a good idea to have a lawyer to help manage all those creditors, claims and similar probate issues. Before you 'Lawyer Up'Though there are specific situations when having a probate or estate lawyer makes perfect sense, think twice before automatically hiring one to handle every issue during the probate process. A probate expert can help you navigate the majority of steps and issues that arise during probate—for a fraction of the cost.