As is evident from the previous post, an executor’s duties can be incredibly time-intensive and complicated depending on the type of estate that is being probated.
Often an executor will hire a lawyer to help guide him or her through the probate process and/or do many or all of the court filings on their behalf. An attorney can easily file the court documents, notify the appropriate beneficiaries and authorities, help collect the assets, deal with creditors, negotiate distributions, and obtain the final court order in a timely manner. Despite the benefits, some executor’s prefer to avoid paying attorney fees which can be quite substantial for probate.
When deciding whether you need to hire a lawyer, it is helpful to consider the following factors:
- Size of the estate. Small estates can avoid probate proceedings altogether. In California, if the estate is worth $150,000 or less, it does not need to go through probate.
- Family dynamics. If the family of the deceased person is generally getting along and uncontentious regarding the estate property, there is less of a need for a lawyer. However, if there seems to be conflict and threats of suing the estate, it is best to hire a lawyer immediately as probate lawsuits can be a huge drain on estate assets and tear a family apart.
- Types of assets in the estate. If the assets in an estate are relatively simple to dispose of such as bank accounts, investment accounts, vehicles, etc. an executor may be able to probate them without much complication. However, if the assets include real estate, business, commercial real estate, or other things of that nature, it is often necessary to hire a lawyer in appraising and managing these assets.
- Relative size of estate debts. If there seems to be more debts owing from the estate than there are assets to pay such debts, it is advisable to hire a lawyer. Many states have complex creditor laws and determining which debts have priority is something best left to a legal professional.
- State and federal taxes on the estate. Most estates are too small to owe federal estate tax, but many do qualify for state tax. If the estate owes state or federal taxes, it is important to seek professional legal and tax advice.
- Will property in other states or countries. If the deceased owned property in just one jurisdiction, the probate process can be much simpler. But the complexities of probating assets in other states or countries often make it worth hiring a legal professional to manage the process and make sure the laws of each jurisdiction are complied with.
In general, if the executor is unfamiliar with the probate process but wants the estate to be wrapped up in an efficient and timely manner, it is often advisable to seek professional legal help. A lawyer can streamline the process and do the requisite filings correctly the first time so that the estate can be probated as smoothly as possible.
