Some probate processes can be handled without a lawyer. Lawyers are, however, necessary when dealing with large estates or estates that contain special assets, such as ongoing businesses.
The ultimate decision to hire a probate lawyer or not requires a person to answer these frequently asked questions. If the person answers most of the questions with a “no,” then that person needs to work closely with a lawyer when wrapping up the estate.
Can the Decedent’s Assets Avoid Probate?
The level of probate-avoidance planning that the decedent implemented during estate planning will determine the answer to this question. Probate cases where the decedent decreed that his or her assets should get transferred to named individuals are straightforward. These assets include proceeds of life insurance policy and retirement accounts. Assets held in survivorship community property, tenancy by the entirety (TBE), joint tenancy, or living trusts can also bypass the probate route.
Is the Estate Categorized as a Small Estate by the State?
The executors have the option of using the ‘small estate’ provisions if the legal option is unavoidable. This out-of-court option only requires the beneficiaries to present a simple affidavit to the current holder of the estate. This procedure works for both small and fairly large estates.
Are the Beneficiaries Getting Along?
A probate lawyer is needed when one or more of the listed beneficiaries contest the Will. The legal advice of the lawyer can help the beneficiaries avoid costly and protracted court battles.
Has the State Adopted a Simple Probate Process?
If the decedent lived in a state that operates on the Uniform Probate Code (UPC), the probate process requires minimal legal intervention. If the deceased person lived in a non-UPC-compliant state, the case is often heard in court.
What Are the Contents of the Estate?
Probate cases involving common assets, such as vehicles, houses, household goods, and brokerage or bank accounts are pretty straightforward. Probate court proceedings involving estates with commercial real estate and ongoing businesses require the input of an attorney. The attorney can walk the executor through the process of managing, appraising, or selling these special assets.
Is the Estate Liquid Enough to Offset Arising Dues?
If the estate has enough money to pay the deceased’s medical expenses, funeral costs, and any outstanding taxes, there is no need for court. The beneficiaries can simply split up the remaining cash based on the Will or state law.
