Usually, executors are told to immediately hire a probate lawyer having adequate knowledge about the probate laws of the state, and with your knowledge of probate, it is very likely that that would be the best choice for you. But as an executor, you should also know that more of the burden of probate would be handled by you and what you should expect to get from the lawyer is limited professional advice regarding certain issues and steps to take. If the estate which you’re handling is a small one with no complicated assets, then you likely would be able to go it all alone without any legal assistance.
However, there are certain factors or questions which you must consider and ask yourself to determine if indeed you would need the help of a probate lawyer. Such questions include:
Would probate be done on the estate?
If there would be no probate, then automatically there would be no need for a probate lawyer. In some states, there is a certain threshold amount below which probate would not be conducted. In New York, an estate valuing less than $30,000 would not be probated, but will be disposed through a “small estate administration”. Also, the deceased may have designed his or her estate plan to deliberately avoid probate. This may be done by creating and transferring assets into a living trust, as assets held in a living trust will be passed to the beneficiaries without having to go through probate. Other assets which can bypass probate are retirement accounts and life insurance proceeds of which beneficiaries have been designated right in the document, assets held in joint tenancy, tenancy by entirety, or survivorship community property. If that is the case, then there would be no need for hiring a probate lawyer.
What is the level of cordiality within the family?
As an executor hoping to administer the estate and distribute the assets amongst the heirs of the decedent, you should ask yourself this question: “do these people really get along well?” If the members of the family are not so friendly with each other, then there is a higher risk that disagreement may arise over ownership rights of property, and one or more parties may sue over the estate or even contest the will. When you begin to observe this tension among the heirs, do not hesitate to contact a probate attorney. He or she would help prevent the court battles that may ensue, and these court cases incur a lot of expenses.
Is the Uniform Probate Code effective in your estate?
The Uniform Probate Code, UPC, is a system effective in some states which aims at simplifying the probate process. In UPC states, probate is very straightforward and requires minimal court supervision. In some other states, there are other systems effective which, just like the UPC, eases the process of probate. Ensure you do your research to know if your state has simplified probate or not.
How complicated are the estate assets?
The answer to question would determine how complicated probate can get in the long run. If the estate contain only simple assets such as houses, cars, bank accounts, then probate would be relatively easy. But if there are businesses, partnerships, commercial real estate and other complexly owned assets, then as an executor you would need to consult professionals in handling these assets. Also, you would need legal guidance from a probate attorney so as to avoid any wrong detrimental step.
Will the estate funds suffice to pay debts and taxes while leaving sufficient amount for the beneficiaries?
Ensure you have valuated the estate and obtained an accurate estimate of all the assets left by the deceased. Once this has been done, check if this amount would be enough to pay estate creditors, income taxes and funeral bills, while leaving sufficient amount for the beneficiaries. If there won’t be enough money left to distribute, then do not pay any debt or tax until you have consulted with a probate attorney well-versed in the laws of the state in question. State law gives priority to some creditors over others, and the probate lawyer would advise you on what debt to pay first. But if your accounting investigation reveals there would be more than enough funds to settle all bills, taxes and debts while leaving enough funds to distribute to the heirs just as the will instructs, then you would not necessarily need legal guidance in this regard.