Do I need a probate lawyer?
You’ve been named executor of an estate. Or you’re trying to figure out the estate of someone who died without a will. And you’re asking yourself what’s next. Do you need to hire a probate lawyer?
There’s a good chance that you don’t — which is very good news because hiring a probate attorney can be quite expensive. Attorney fees for a simple estate are generally between $3,000 and $7,000. While that cost is technically the estate’s responsibility, any money that is spent reduces the amount available for heirs. And some estates may not have enough money to cover attorney fees.
If you’ve already decided not to hire an attorney, and you’re ready to jump right in, click here to find out how to probate a will without an attorney. (And PS: this also works if there’s no will.)
If you’re still on the fence, read on to learn when you don’t need a probate attorney — and when you really do.
The probate process
Let’s start with a basic explanation of probate. Probate is a fancy word for the process of proving the validity of a will. A probate judge reviews the will, appoints the executor, and oversees the payment of debts and distribution of assets in accordance with the terms of the will. If there is no will, the judge determines who the legal heirs are, appoints an administrator, and oversees the same actions in accordance with state law.
Whether a valid will exists or doesn’t exist, the basic steps of the probate process are the same:
- Petition the court to become the legal representative (executor or administrator)
- Notify heirs and creditors of the opening of an estate
- Change legal ownership of assets from the deceased to the estate
- Pay funeral expenses, taxes, and debts
- Distribute remaining assets to heirs
- Notify the court of your actions and request the estate be closed
While the process can be time-consuming and tedious, it’s also relatively straightforward for most estates.
When you can handle probate without an attorney
Most estates aren’t that complex, and a lawyer’s job wouldn’t require more than filling out forms and submitting them to the court on your behalf. And while a lawyer may guide you through the administrative process of notifying creditors and heirs or managing the deceased’s assets, you would likely perform those tasks on your own.
If you’re managing an estate like these, you don’t need to hire a probate attorney:
- The estate is simple, with common assets like property (a house), bank accounts, investments, etc
- The estate is a small estate that is eligible for simplified probate procedures. Click here to find out more about probating a small estate.
- All the interested parties agree on the basic points — that the will is valid, who the executor will be, or if there is no will, who the administrator will be and how assets should be managed and distributed
- The estate has enough assets to pay its debts
- The estate isn’t going to owe estate taxes (either state or federal). Most estates that are large enough to owe federal estate tax would be complex enough to benefit from an attorney, but some states have relatively low estate tax exemptions.
- Probate isn’t required because all assets are being transferred automatically, through joint ownership, payable on death accounts, or living trusts. Check out our article on which assets go through probate.
When you need an attorney to help with probate
There are a few situations where the services of an attorney are necessary or, at the very least, beneficial.
- The estate has complicated assets like businesses, royalties, mineral rights, etc
- The estate is insolvent, meaning it doesn’t have enough assets to cover its debts and taxes.
- The estate is being contested.
- The estate is being probated in a state that requires an attorney by law — Florida, Texas, Missouri, and Mississippi.
- In Florida, no attorney is required when (a) the assets (not including the home) are under $75,000, or (b) the deceased passed away more than 2 years ago, or (c) there is only one heir
- In Texas, no attorney is required when the assets (not including the home) are under $75,000 or there is only one heir
As you can see, the majority of estates don’t require an attorney. While hiring an attorney could provide some peace of mind that the probate process is being handled appropriately, that’s some expensive security. And there are other ways to make sure you’re on the right track.
We help hundreds of executors and administrators successfully manage the probate process on their own each year. They save thousands of dollars by not hiring an attorney or by using an attorney strategically for only the parts of the process that require one.
Fill out our simple questionnaire, and we’ll send you a draft petition for probate that’s ready to sign and file with the court — along with instructions for what to do next.