There are instances in which it is not necessary to hire a probate lawyer, but other situations very nearly require it. That said, some executors prefer to have a probate lawyer take care of managing and terminating an estate so that they do not have to be concerned with meeting their legal obligations. Another factor is that the executor of an estate is usually someone who was close to the decedent and their grief may feel overwhelming and their ability to manage the estate, particularly if they have no experience doing this. A probate lawyer will make sure that all federal and state laws will be followed, and that tax obligations will be met as well.
If you are unsure as to whether or not you need to hire a probate lawyer, discuss your circumstances with a probate lawyer in confidence during a no-cost consultation. Afterward, you will have an honest assessment of your legal needs and if you may be able to resolve your probate concerns on your own.
To help you determine if you might benefit from hiring a probate lawyer, ask yourself the following questions:
Must any of the deceased’s assets pass through probate before distribution to heirs?
The answer will largely depend on the steps that the deceased took (or did not take) in planning their estate. If they worked with a probate lawyer, there is a good chance that the assets will not have to go through probate. For example, if the assets are contained within a life insurance policy, retirement account, or bank accounts with an appointed beneficiary, you can transfer the funds directly to the heir during the disbursement period. Ask your probate lawyer about tenancy by entirety, survivorship community property, and joint tenancy and if any of these apply in this case. If there are no assets that must go through probate, you can check that off your executor task list.
Is the estate considered a “small estate” under the state law?
Each state has made the determination that an estate whose value is less than a certain dollar amount is classified as a small estate. As such, it may be possible to undergo a process similar to probate that does not involve the court. In lieu of the probate process, a small estate executor can submit an affidavit (otherwise known as a sworn statement) to the banking institution or individual that is currently in possession of the deceased’s assets. When you consult with a probate lawyer during your initial case review, you can inquire as to whether or not the estate you’re managing falls under the small estate category.
Is an heir, or someone who was left out of the will, indicating that they may contest the will or trust?
If someone believes they should have inherited a larger share, or if they were not included in the will at all, they may choose to contest the will. Contesting the will is a legal action and most likely they will retain a lawyer to represent them. As the executor, you may find yourself in a vulnerable position should this occur. Hiring a probate lawyer in Memphis, TN to protect yourself and the estate may be in your best interest.
Thanks to Patterson Bray for their insight into estate planning and reasons to hire a probate lawyer.