Do you need a lawyer for probate?

A lawyer is always a good idea for probate, especially if:

• The will is unclear or its validity in doubt.

• The estate's assets will not cover its debts, or you're not sure if they will.

• The estate is larger than your own assets, or if it involves real estate, especially real estate with debt attached to it.

• The estate owes back taxes.

• You live far away from the state where your loved one lived.

• There is conflict between family members or beneficiaries.

• You feel like you might be in over your head or in any way unprepared to correctly administer the estate.

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It is possible, and legal, to go through the full probate process on your own, without retaining an estate lawyer. It is also complicated, and could potentially involve liability to yourself and the estate. If you as the executor do not handle matters correctly, even if it was an honest mistake, you can be held personally liable. And even if you are not, there is the potential for losing money for the beneficiaries of the estate.

The risks are not inconsiderable, and it is highly recommended that you hire a professional who deals with these matters every day. Remember that even this legal process is an act of love, a way to honor the memory of your loved one by dealing with their final affairs, and so doing it correctly is important. However, if you are inclined not to involve a lawyer, there are several questions that you should be asking up front, to determine whether independent probate is something you can realistically consider.

The will

First of all, Is there a will? If there isn’t, intestate inheritance laws will determine who gets what, and these laws are different from state to state. The administration of this sort of estate will be much easier with the assistance of an attorney. 

Depending on your relationship to your loved one, you may not be first in line to become administrator. Typically a spouse will be chosen first, followed by adult children, but each state handles this differently, so research the state legal code to determine this. Certain factors may also disqualify one from serving as administrator, such as criminal history, business partnership, and your state of residence. 

If there is a will, is it typed and properly witnessed, and does it name an executor? Is the language of the will clear and unambiguous? If there are any doubts about any of this, legal counsel is especially advised. 

Insolvency

Does the estate have enough assets to pay all of its debts? If not, it will be subject to specific rules about what debts must be paid when. Insolvency can be hard to assess from the outset; some warning signs may include piles of unopened letters from collection agencies, unorganized bank statements and financial documents, persistent calls about debts, or a lack of clarity about which banking and financial institutions your loved one used. 

If any confusion exists here, then it is essential to hire a lawyer. Paying the wrong debt first could lead to creditors who had priority bringing legal claims, and the ensuing legal battle could be expensive for both the estate and you personally.

Size of the estate

If the estate is worth over $1 million, or is substantially larger than the assets you personally possess, it is advisable to retain a lawyer to protect both yourself and the estate. Additionally, large estates may owe federal or state estate taxes, for which an attorney or accountant will be helpful. In most if not all cases, a good lawyer can save you money based on their deep knowledge of the field.

Real estate

Did your loved one own a house, condominium, or co-op that is now part of their estate? Are there any disputes over, liens on, or unpaid mortgages or taxes owed on the property? If so, whether your intention is to sell the property or transfer the title and mortgage, you should get an attorney. For most people, their home is their largest single asset, as well as the one that holds the most emotional value.

Taxes

What was your loved one’s tax situation? If there is a dispute over past taxes, any unpaid back taxes, or a stack of unopened letters from the IRS, you may wish to seek legal counsel, as well the services of an accountant. The IRS is a large, slow-moving organization that you must stay on top of during probate proceedings, because it will eventually require payment, and failure to do so could lead to personal liability.

Where you live

Are you a resident of the same state in which your loved one lived? If not, visiting the applicable state offices and showing up to probate court may be tricky. Frequently, hiring a local estate lawyer is more affordable in terms of your own travel and lodging expenses. In many states, non-residents must post a bond or appoint an in-state agent in order to receive communications from the court.

Emotional matters

Are the family members and any other beneficiaries substantially in agreement about how to divide the estate? If any bickering, disagreements, or strife exists, a lawyer can be a very effective, unemotional, and unbiased mediator who can help alleviate the disharmony. In addition, if you yourself are feeling overwhelmed by emotion, it is often worth paying for the services of an attorney in order to give yourself room to process while they handle the difficult and complex tasks.

Doing it yourself

If you can confidently answer all these questions, and you believe the estate is simple enough to handle on your own as executor, you should begin assembling all the necessary forms for the state where your loved one lived; each state handles probate differently, so independent research will be necessary. The court cannot provide legal advice or help beyond providing you with the requisite forms and procedural rules.

You may find it feasible to do without a lawyer if the estate is small enough that you can avoid the full probate process. What each state considers a “small estate” varies widely. For example, in Alabama the limit is $25,000 with no real estate involved; whereas California sets their limit at $184,500 with various exclusions. 

If your loved one had an estate plan that allowed the majority of their assets to be passed to beneficiaries outside of probate, then the full probate process may likewise be able to be bypassed, or may be relatively simple. If they had significant assets but they were all held in living trusts, in joint ownership agreements, or had payable-on-death designations and named beneficiaries, then there may be little need for a lawyer to help with whatever remains to be probated. Of course, it is likely that any trust or other similar financial instrument will have been set up by your loved one’s lawyer, who should be consulted now that they have passed on what the next steps for these assets will be.

Note that if you do start the process on your own and then find yourself in over your head down the line, you have a variety of options. You could ask for legal advice on only the particular aspects that are confusing you—though some attorneys may not be willing to participate in this piecemeal approach due to potential liability from giving incomplete advice. You could also gather all the documents and forms, take an inventory of assets, debts, and outstanding taxes, prepare for probate court, and then hire a lawyer for a shorter time merely to review what you’ve prepared. 

All in all, it is wise to consult a lawyer at least once to get their read on the estate and what you are in for during probate, even if you think you may not need one. With modern tools of the information age at your fingertips, non-lawyers are better able to access legal documents, research applicable state and federal laws, and engage with the legal system than ever before. Taking on this responsibility can be empowering, but it can also come with a great cost if you discover it is too much to handle, which can be especially hard when you are also engaged in the difficult emotional labor of grieving. Above all, take care of yourself and those who rely on you, and if you’re feeling overwhelmed, reach out for help: You will always be able to find an attorney to help if you do need assistance, and in almost all cases, their fees will come from the estate itself.

You may be eligible for free bereavement support. Empathy can help with everything from funeral planning to estate administration, with step-by-step guidance and real-time expert support. Many people get free premium access to Empathy as a benefit with their life insurance claim. We partner with New York Life, Guardian Life Insurance Company, Bestow, Lemonade, and other leading carriers. When you make your life insurance claim, talk to your representative about whether Empathy is a benefit they offer.