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Do I Need an Attorney for Probate?

Do I need an attorney for probate
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A competent elder law or estate attorney can discuss and use, where appropriate, such provisions as the family exemption, benefits to prepaying inheritance tax, even where the tax return is not yet complete and a listing of itemized deductions.

Having an estate planning attorney manage the probate process can alleviate a great deal of stress for the family, says the recent article “Reasons to hire a lawyer for probate” from The Mercury.

For one thing, the attorney will know what your state requires to execute the will. You may need to pay a state inheritance tax, or you may have to file certain documents specific to your state. Even if the surviving spouse is the only beneficiary and all assets are either jointly titled or are distributed through beneficiary designations, there are other details you may miss.

A surviving spouse will certainly appreciate not having to undertake a mountain of paperwork or electronic forms on their own, especially if no adult children live nearby to help. Which beneficiary form needs to be completed, and what will financial institutions need to change accounts to the proper ownership? It can be daunting, especially during mourning.

Depending upon the state, there may be exemptions, discounts, and deductions from the estate. A layperson likely does not know if their state deducts the attorney’s fees and the executor’s fees. Even attorneys who do not practice estate law do not always know about these potential benefits.

An estate planning attorney will also know how long the probate process will take. If the surviving spouse is the executor and cannot attend probate court, some cases accept a remote process. There are also COVID-specific procedures in some states, which a layperson may not know about.

If there are family disputes between beneficiaries regarding distribution, an estate planning attorney could be an essential resource. A settlement agreement may need to be created that conforms to the state’s law. If it is not handled correctly, the agreement could be deemed invalid if challenged in court.

What if the family home is being sold? Sometimes executors working without an attorney do not realize the requirements from title insurance companies regarding the sale of a property where one of the parties has passed. Failing to make sure these requirements are met could delay the estate settlement and put the property sale in jeopardy.

If there are health or creditor issues, or property disputes, an estate planning attorney is invaluable in protecting the surviving spouse and executor. The estate is left with substantial medical bills, Medicaid claims, or related costs in many cases. Executors may not know their rights or how to defend the estate. A knowledgeable estate planning attorney will.

Reference: The Mercury (Feb. 8, 2022) “Reasons to hire a lawyer for probate.”