Do I Need to Hire a Probate Lawyer
Posted: Nov 24, 2015
The first advice you get when you read online advice for executors, is usually to hire a lawyer. When you are winding up an estate, you may as well decide that you want legal advice from a lawyer who’s familiar with how the local probate court and the state law works. However, not all executors need to turn a probate court proceeding to a lawyer or even hire an experienced lawyer for limited advice. You may be able to get by yourself just fine if the estate that you’re handling is very small and does not contain any unusual assets.
To be able to determine whether or not you will be able to go it alone, you should ask yourself the questions outlined below. ( If you do not know the answers, then ask a lawyer-before you proceed to hire the lawyer to handle the case for you.) The more questions you answer with a "no," the likely it is that you can’t wrap up the estate without a qualified professional at your side.
Are the family members getting along well? Will contests are very rare, but in case a family member is making threats about suing you over the estate, talk to a lawyer immediately. Probate lawsuits can drain a lot of money from the estate and tear families apart in the process. An experienced lawyer may be able to help you avoid a court battle.
Can the deceased assets be transferred to the beneficiaries outside of probate? The correct answer to this question often depends on how much probate avoidance planning the deceased did before his/her death. Ideally, all the assets can be transferred to the new owners without probate court. Assets that are held in joint tenancy, survivorship community property, or by tenancy by the entirety do not need to go through probate. Assets being held in a living trust can also bypass probate.
Probate is not required for the assets that the deceased person named a specific beneficiary.
Will the estate qualify for your state’s "small estate" procedures? It’s better if there’s no probate required at all, if probate is a must, try to figure out whether the estate can make use of the small estate procedures in your state. These includes a streamlined "summary probate" and an out-of-court process that just requires presenting a sworn statement (affidavit) to the institution or person holding the asset. Each and every state has its own set of rules on estates that can use the simpler procedures. But in most states, even estates that are large-not counting non-probate assets, can use the simpler processes.
Is the money in the estate enough to pay debts? If there is enough money in the estate to pay all the legitimate debts such as expenses of last illness or funeral costs, with some money left over for the beneficiaries, under the state law, you will not have to figure out which debts to pay. If, however, the initial investigation shows that there may be inadequate money in the estate to pay taxes and debts, do not pay any bills before you get legal advice. Some creditors are given priority over others by the state law.
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Janet Martin is an expert article writer who has written many articles related to Lawyer Tips. Currently, he is writing content on Trusts Attorney NYC