Do You Need A Probate Attorney If An Estate Isn't In Dispute?

23 July 2021
 Categories: Law, Blog

The idea of paying for probate attorney services tends to make people think there must be a dispute over the disposition of an estate. However, the probate process doesn't presuppose a dispute. Instead, it is largely driven by benchmarks for what's potentially at stake.

You might wonder whether you should hire a probate attorney. Here are four ways to look at the possibility of retaining counsel in this situation.

Is There a Will?

The fastest way for a case to go into probate is for there to not be a will. A probate judge would then be responsible for determining what the decedent's wishes were. However, this sort of estate may still be eligible for the simplified process under state law.

How Much Money Is at Stake?

All states have some form of simplified probate system for dealing with a relatively small estate. Unfortunately, the eligibility requirements for this simplified process vary widely. You may want to consult a probate attorney briefly to determine if the estate is eligible under state law for this simpler process.

Notably, there are numerous ways an estate might make this eligibility determination simpler. If the decedent signed a payable-on-death benefit for a checking, savings, money market, or brokerage account, the account's money usually doesn't need to go through probate. A beneficiary would merely have to provide a death certificate and proof that they are the party named in the benefit. Similarly, money and assets in a trust don't go through probate as long as there are no disputes.

Can You Find the Beneficiaries?

Another potential reason for an estate to go into probate is that some of the beneficiaries might not be locatable. This can get a bit complicated if it's not clear whether one is still alive. If they passed, did they leave any heirs?

While an executor has a lot of leeway to make decisions in this situation, the court will want to see they made an effort to locate all beneficiaries. If an executor needs to document these efforts, they may want a probate attorney to assist them in the location efforts and in documenting them.

How Complex Is the Estate?

Some estates have a lot of bells and whistles. For example, a grantor might have included provisions in their will for the creation of a trust only upon their passing. An executor will want to be sure they handle all of the steps faithfully. You can also encounter issues related to debts or taxes, shares in non-public companies, or business voting rights.